ACT NO, 7 01'2011

Children's Protection and Welfare Act, 2011

ARRANGEMENT OF SECTIONS

Sections

PART I - PRELIMINARY

1. Short title and commencement

2. Objects
3. Interpretation

PART II - PRINCIPLES

4. The best interests of a child

5. Evolving capacity
6. Non-discrimination

PART III - RIGHTS OF A CHILD AND RESPONSIBILITIES OF

PARENTS AND THE STATE

7. Identity of a child
8. Right to registration
9. Right of orphaned and vulnerable children to registration
10. Right to live with parents and grow up in a caring environment
11. Right to education and health
12. Right to social activity
13. Rights of child with disabilities
14. Right of opinion
15. Right to protection from exploitative labour
16. Right to protection from torture and degrading treatment
17. A child not to be subjected to harmful cultural rites, customs and tradi-
tional practices
18. Right to be protected from harmful substances
19. Right to parental property
20. Parent's and guardian's duties and responsibilities
21. Children duties and responsibilities
22. State duties and responsibilities
 4.S7

I'ART IV CHILD IN NEED OF CARE AND PROTECTION PART VII - CONDITK )NS l < < >K TAKING A CHILD INTO CARIi

23. Child in need of care and protection 47. Conditions for taking a child into care
24. Taking child into place of safety 48. Application
25. Presentation before Children's Court 49. Subsequent obligations towards taking child into care
26. Child in need of medical examination or treatment 50. Presentation of child before social worker
27. Medical examination and treatment
28. Authorisation of hospitalisation PART VIII - FOSTERAGE AND ADOPTION
29. Control over hospitalisation children
30. Authorisation of medical treatment 51. Person who can foster or adopt
31. Steps to be taken after medical examination or treatment 52. Application to foster or adopt a child
32. No liability incurred for giving authorisation 53. Parental rights and responsibilities of foster parent
33. Duty of medical officer 54. Duties of the Department of Social Welfare
34. Duty of member of the family 55. Application for adoption
35. Duty of child-care provider 56. Effect of adoption on parental rights
36. Duty of member of the community 57. Restriction on making adoption orders
37. Functions of Children's Court in cases of children in need of care 58. Consent of parents or guardians
59. Conditions for adoption order
PART V - ADMINISTRATION OF PROPERTY OF CHILDREN BY 60. Knowledge of adoption by child
OFFICE OF THE MASTER OF THE HIGH COURT 61. Inter-country adoption
62. Devolution of property on adoption
38. Reporting of estate to the office of the Master of the High Court 63. Testamentary disposition
:W. Socking permission of the office of the Master of the High Court for 64. Register of adopted children
alienation, disposal of or sale of children's property 65. Procedure in adoption proceedings
•10. Duties of the Master of the High Court
•II. I )ulies of the District Administrator in the administration of the prop- PART IX - TRAFFICKING AND ABDUCTION OF CHILDREN
erty of children
• I,'. Duty of employer in relation to property belonging to children 66. Unlawful transfer of possession, custody or control of child
•M. Duties of financial institutions 67. Trafficking of child by false pretences
68. Examination of child and person in charge
PART VI - OFFENCES IN RELATION TO HEALTH AND 69. Social worker to cause arrest
WELFARE OF CHILDREN 70. Taking a child without appropriate consent
71. Inquiries and placement of a child brought into or out of Lesotho or
44. Ill-treatment, neglect, abandonment or exposure of children to abuse acquired under false pretences
45. Children not to be used for begging 72. Recovery order
46. Leaving a child without supervision and care
 %. Issue of warrant of nrresl
PART X - CHILD IN NEED OF REHABILITATION AND
97. Duties of police officer upon arrest with or without warrant
URGENT PROTECTION
98. Duty of police officer to inform probation officer
99. Duty of police officer to notii'y parents, guardian or family member
73. Child in need of rehabilitation
100. Duties of police officer upon request
74. Removal of a child in need of rehabilitation to a place of safety
101. Cautioning by police
75. Orders upon completion of an inquiry
102. Pre-trial procedures and presence of parent or guardian
76. Child in need of urgent protection
103. Detention in police custody before appearance at assessment
77. Offences 104. Powers of police to release a child from detention before preliminary
78. Presumptions inquiry
105. Child not charged until matter entered on roll of children's court
PART XI - CHILDREN IN CONFLICT WITH THE LAW,
AGE OF CRIMINAL RESPONSIBILITY AND AGE DETERMINATION
PART XIII - PRELIMINARY INQUIRY
79. Age of criminal responsibility and prosecution requirements
106. Nature and purposes of preliminary inquiry
80. Purposes of assessment of age
107. Procedure in preliminary inquiry
81. Duties of police officer in relation to age assessment
108. Separation and joinder of preliminary inquiry
K2. Age assessment by probation officer
109. General powers and duties of inquiry Magistrate
53. Age estimation by medical officer
110. Decisions of inquiry Magistrate and factors to be considered
54. Age determination to be effected at preliminary inquiry
111. Sufficiency of evidence in a preliminary inquiry
55. Age assessment and determination by officer presiding in criminal
112. Inquiry Magistrate's duty where child previously released or alterna-
court tives to arrest used
8(). Parent or guardian to attend assessment
113. Inquiry Magistrate's duty to inquire into possible release of child from
87. Duties of probation officer in relation to social assessment
detention
88. Powers of probation officer to obtain relevant evidence or secure atten-
Remanding a child for a preliminary inquiry
dance of relevant persons
Circumstances under which a child may be remanded in detention after
89. Powers of probation officer in relation to children below the minimum-
finalisation of preliminary inquiry
age of prosecution
116. Failure of child above the minimum age of prosecution to attend
90. Powers of probation officer in respect of children above the minimum-
assessment or preliminary inquiry
age of prosecution alleged to have committed offences referred to in
1.17. Failure to comply with diversion conditions
Schedule 1
118. Procedure upon referral of matter to be instituted
91. Powers of probation officer in respect of children above the age of
119. Application for release from detention
prosecution alleged to have committed offences referred to in
Schedule E
PART XIV - RESTORATIVE JUSTICE
PART XII - POLICE POWERS AND DUTIES
120. Restorative justice
121. Establishment of Village Child Justice Committee
92. Meaning and purpose of arrest 122. Restorative justice processes
93. Powers of arrest and arrest by police officer without warrant
123. Family Group Conference
94. Alternatives to arrest 124. Open Village lli';iliii)> Forum
125. Victim-offender mediation 152. Nature of sentences
126. Referral to restorative justice process 153. Sentences involving residential ;nul non-residential element
•
327. Diversion 154. Postponement or suspension oi sentence
128. Circumstances to be considered for diversion 155. Sentences with restorative justice element
129. Diversion options 156. Sentence involving imprisonment
130. Referral and powers of prosecution in respect of children above the 157. Sentences involving residential element
minimum age of prosecution with respect to diversion. 158. Contribution order
159. Referral to residential facility
PART XV - BAIL AND DETENTION PENDING TRIAL 160. Monetary penalties
161. Prohibition of certain forms of punishment
131. Bail
132. Remand PART XIX - PROBATION

PART XVI - CHILDREN'S COURT 162. Probation order

163. Failure to comply with probation order
133. Jurisdiction of Children's Court 164. Effects of probation order
134. Proceedings under this Act by a court other than a Children's Court 165. Variation of probation order
135. Assistance to children who appear in court 166. Discharge of probation order
136. Parent or guardian to attend proceedings 167. Children's Court to give copies of varying or discharging order to pro-
137. Charge sheet and withdrawal of charge bation officer
I 38. Conduct of proceedings in Children's Court
I !W. Evidence in cases involving child offenders PART XX - APPEAL AND REVIEW
140. Separation and joinder of trials involving children and adults
141. Separation and joinder of trials involving children only 168. Appeal by child against whom a charge has been proved
142. Adjournment of proceedings 169. Automatic review in certain cases
143. Powers of officer presiding in a Children's Court 170. Review in other instances
144. Failure to attend court proceedings 171. Review of proceedings after proving a charge but before sentence
145. Privacy and confidentiality 172. Suspension of execution of sentence
146. Evidence through intermediaries
PART XXI - CHILDREN AT RISK OF OFFENDING
PART XVII - LEGAL REPRESENTATION
173. Children at risk of offending
147. Principles relating to legal representation 174. Supervision by probation officer
148. Appointment of a legal representative
PART XXII - INSTITUTIONS
PART XVIII - SENTENCING
175. Places of safety for children in need of welfare
149. Power to impose sentence after a charge is proved 176. Escape or removal of child from place of safety.
150. Pre-sentence report 177. Removing or helping a child to escape from place of safety
151. Evidence of previous diversion and other evidence relevant to sentence 178. Places of detention or custody For children in conflict with the law
4(>2 463

179. Remanding children to places of detention or custody PART XXII I MAINTENANCE OF CHILDREN
180. Escape or removal from place of detention or custody
181. Removing or helping child to escape from place of detention or cus- 212. Duty to maintain a child
tody
213. Application for maintenance order
182. Probation hostel 214. Consideration for maintenance orders
183. Child under thirteen years not to be sent to probation hostel 215. Request for social inquiry report
184. Child who escapes or is removecf from probation hostel 216. Maintenance order ** .
185. Removing or helping a child to escape from probation hostel 217. Persons entitled to maintenance order ;r
218. Duration of order
186. Approved school
187. Child under thirteen years not to be sent to an approved school 219. Continuation of maintenance orders
188. When child can be sent to approved school 220. Variation or discharge of orders
221. Enforcement of maintenance orders .; ;
189. Approved school order
222. Non-custodial parent to have access to child
190. Further placement in approved school
223. Joint maintenance of child
191. After-care of child released from approved school
224. Maintenance during matrimonial proceedings l;. .M
191. Escape from approved school or failure to return to approved school
225. Payment of maintenance monies to persons other than applicant
after expiry of leave
192. Supervision of approved school t\>-
193. Removing or helping a child to escape from approved school PART XXIV - EMPLOYMENT OF CHILDREN
1 <>5. Other facilities for children in conflict with the law
226. Exploitative child labour
1%. Standards for monitoring and supervision of children's institutions
227. Prohibition of child labour at night and in industrial undertakings
established under this Act
228. Minimum age for child labour
229. Engagement in light work
PART XXII - PARENTAGE, CUSTODY AND GUARDIANSHIP
230. Minimum age for hazardous employment
231. Non-employment of children and young persons in industrial under-
197. Parentage
takings
198. Evidence of parentage
199. Medical test
PART XXV - PROTECTIVE MEASURES RELATING TO
200. Custody and access
THE HEALTH OF CHILDREN
201. Non-custodial parent to have access to a child
'. ' I , '. ";
202. Removal of a child from lawful custody
232. Consent to medical treatment or surgical operation ' ,•
203. Appointment of guardian
233. HIV Testing
204. Rights of surviving parent to guardianship
234. Access to legal, medical and health assistance
205. Appointment of testamentary guardian
235. Powers of the courts ,if , ;;;i t<
206. Appointment of guardian by a Children's Court
236. Regulations ''•'•
207. Guardianship revocation
237. Repeals :
208. Extension of guardianship beyond a child's eighteenth birthday
238. Amendment of Labour Code, 1992
209. Disputes between guardians
210. Neglect or misapplication of assets by the guardian of the estate of the
child
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"abuse" in relation to a child, means any form of harm or ill-treatment deliber-

ACT NO. 7 OF 201
ately inflicted on a child, and includes -
Children's Protection and Welfare Act, 2011
(a) assaulting a child or inflicting any other form of deliberate
injury or harm on a child;
An Act to consolidate and reform the laws relating to the protection and wel-
fare of children and to provide for incidental matters.
(b) sexually abusing a child;
Enacted by the Parliament of Lesotho. }
(c) committing an exploitative labour practice in relation to a
child; .,'((.-.
PART I - PRELIMINARY
(d) exposing or subjecting a child to behaviour that may socially,
Short title and commencement emotionally, physically or psychologically harm the child;
1. This Act may be cited as Children's Protection and Welfare Act, 2011
(e) exposing a child to physical or mental neglect; .
and shall come into operation on the date of its publication in the Gazette.
(f) abandoning or leaving a child without visible means of
Objects
support; and
'}.. (1) The objects of this Act are to extend, promote and protect the
(g) subjecting a child to harmful substances such as alcohol and
rights of children as defined in the 1989 United Nations Convention on the
drugs.
k ights of the Child, the 1990 African Charter on the Rights and Welfare of the
('hi Id and other international instruments, protocols, standards and rules on the
"adoption agencies" means non-governmental organisations authorised by
protection and welfare of children to which Lesotho is a signatory.
their governments to carry out mandates of adoption processes under supervi-
sion of departments responsible for children's welfare and protection;
(2) This Act shall be administered and enforced so as to enhance
the promotion, protection and realisation of the rights and welfare of children.
"approved school" means a school designated as such under section 188;
(3) Nothing in this Act is intended to prevent, discourage or dis-
"approved school order" means an order made by a Children's Court requir-
place the application of informal and traditional regimes that are more promo-
ing a child to be sent to an approved school;
tive or protective of the rights of children except where those regimes are con-
trary to the best interests of children.
"assessment" means a process of evaluation of a child by a probation
officer or social worker, on the child's development and competencies,
(4) Where there is anything to the contrary or less protective or
the child's family or home circumstances, the nature and circumstances
less promotive in any law, the provisions of this Act shall apply.
sin-rounding the socio-economic circumstances of the child or an alleged
commission of an offence and its impact upon the victim, intention of
Interpretation the child to acknowledge responsibility for the alleged offence, and any
other relevant circumstances or factors;
3. In this Act, unless the context otherwise requires -
"Hnreau of Statistics" moans a u n i t within a Ministry responsible for statistics;
466
"chief has the meaning assigned to it in the Chieftainship Act, 1968;
"child" means a person under the age of eighteen years;
"children's court" has the meaning assigned to it under section 134;
"Commissioner of Police" has the same meaning as in the Police Services Act
1998;
"community service" has the same meaning as in the Community Service
Rules, 1999;
"contribution order" means an order made by a Children's Court for a parent
of a child who is sent to an institution to contribute financially for the welfare
of the child;
";i child with disability" means a child who is affected by any disability of a
physical, intellectual, sensory or mental nature or other disability irrespective
ol its cause, whether temporary or permanent, to the extent that the child is
unable to engage in activities in a normal way and is as a result hampered in
his normal functions in certain areas of social life;
"Department of Social Welfare" means a department responsible for social
welfare;
"detention" means the deprivation of liberty of a child including confinement
in a police cell, lock-up, prison, approved school or probation hostel;
"Director of Probation Unit" means an officer heading the probation unit;
"District Administrator" has the same meaning as in the Local Government
Act, 1997;
"diversion" means the referral of cases of children alleged to have committed
offences away from the criminal justice system with or without conditions;
"diversion programme" means a programme which is intended to promote a
child's accountability and reintegration into society;
"early intervention services1' means social development services which are
provided to families with children in order lo strengthen and build their capac-
ity and self-reliance to address problems that may or are bound to occur in the
family environment;
"family foster care" means placement of a child by the Department of Social
Welfare with family members who are not the child's biological parents;
"family group conference" means a meeting involving a child, his parents and
family members, a victim of an offence, his parents and any other relevant
party to find ways to restore the harm and broken relationships caused by the
child's offending;
"foster parent" means a person, not being a parent of a child, who undertakes
I he responsibility of providing for the care, accommodation and upbringing of
(he child, with or without financial reward;
"guardian" means any person who, in the opinion of a Children's Court, hav-
ing cognizance of any case in relation to a child or in which the child is con-
cerned, is for the time being in charge of and has control over the child;
"household member" means a person who ordinarily resides in the same
household as a child;
"inquiry magistrate" means an officer presiding in a preliminary inquiry;
"institutional foster care" means placement of a child by the Department of
Social Welfare at a care facility for a specified period of time;
"local authority" has the same meaning as in the Local Government Act, 1997;
"member of the family" includes a parent or a guardian, or a member of an
extended family, who is a household member;
"Minister" means the Minister responsible for children's affairs;
"person" means a natural person or juristic person;
"place
1
of detention" -

(a) means ;my place- of detention established or appointed under
sediou I S l ; and
(b) includes accommodation in police station, police cell or lock-
up, prison, approved school, probation hostel, separate or apart
from adult offenders;
"place of safety" means any institution designated for the care and protection
of children, foster home or any other suitable place the occupier of which is
willing temporarily to receive a child;
"police officer" has the same meaning as in the Police Service Act 1998;
"preliminary inquiry" means a compulsory procedure which takes place before
charges are instituted in relation to an alleged offence and which is held in all
cases involving a child over the minimum age of criminal responsibility, where
diversion, conversion to a Children's Court inquiry or a decision to decline to
charge the child has not yet been taken in accordance with this Act;
"probationer" means a child for the time being under supervision by virtue of
a probation order;
"probation hostel" means a hostel established or appointed as a place of resi-
dence for children required to reside there under section 182;
"probation officer" means a person who holds a qualification recognised by the
responsible Minister and includes auxiliary probation officer and shall by
virtue of such status be an officer of court;
"probation period" means the period in which a probationer is placed under
supervision by a probation order;
"probation unit" means a department, in the Ministry responsible for justice
which deals with the rehabilitation and re-intergration of children in conflict
with the law and at risk of offending;
"recognisance" means a communication to the child by a police officer or
social worker to appear at an assessment on a specified date and at a specified
place and time, or by a magistrate to appear at a preliminary inquiry or before
a Children's Court;
"Registrar of Births and Dealhs" has (he same meaning as in the Registration
of Births and Deaths Act, I TO;
"sentence involving residential element" means a sentence referred to under
section 154 (3) or a programme referred to under section 159 where part of
that sentence or programme involves compulsory residence in a residential
facility or a place other than a child's home;
"social worker" means a person who holds a qualification recognised by the
National Council of Social Workers and includes auxiliary social workers and
shall by virtue of such status be an officer of court;
"trafficking" means the recruitment, transportation, transfer, sale, harbouring
or receipt of persons by means of threat or use of force or other forms of coer-
cion, of abduction, of fraud, of deception, of the abuse of power or of a posi-
lion of vulnerability or of the giving or receiving of payments or benefits to
achieve the consent of a person having control over another person, for the pur-
poses of exploitation; and
"vulnerable child" is a person who is below the age of 18, who has one or both
parents who have deserted or neglected him to the extent that he has no means
of survival and as such is exposed to dangers of abuse, exploitation or crimi-
nality and is, therefore, in need of care and protection.
PART II - PRINCIPLES
The best interests of a child
•I. (1) All actions concerning a child shall take full account of his best
Interests,
(2) The best interests of a child shall be the primary consideration
lor all courts, persons, including parents, institutions or other bodies in any
matter concerning a child.
Involving capacity
5. All actions concerning a child shall take full account of his evolving
capacities.
 471

(b) subject the child to abuse and neglect; or

Non-discrimination
6. A child shall no) he discriminated against on the grounds of gender, (c) not be in the best interests of the child.
race, age, religion, disability, health status, language, custom, ethnic origin,
rural or urban background, birth, socio-economic status, refugee status or Right to education and Health
other status.
II. (1) A child has a right to access education, adequate diet, clothing,
PART III - RIGHTS OF A CHILD AND RESPONSIBILITIES OF shelter, medical attention, social services or any other service required for the
PARENTS AND THE STATE child's development.

Identity of a Child (2) A child shall not be denied or hindered from medical treatment
by reason of religious or other beliefs.
7. A child has a right, from birth, to a decent name and to acquire a
nationality. (3) A child has a right to education regardless of the type or sever-
ity of the disability he has.
Right to registration
(4) No child shall be expelled or denied the right to education by
8. A child has a right to be registered within three months of birth whether any educational institute on account of pregnancy, initiation or other cultural
born alive or still-born. rituals.

Right of orphaned and vulnerable children to registration
9. (1) Orphaned and vulnerable children shall have a right to registra-
tion.
(2) The Department responsible for registration of births and
deaths shall maintain and administer a systematic and comprehensive data in
relation to all groups of orphaned and vulnerable children.
(3) Bureau of Statistics shall have access to date in relation to all
groups of orphaned and vulnerable children.
(5) No child shall be compelled to undergo cultural rites and prac-
lices which may negatively affect his right to education.
(6) A child has a right to sexual and reproductive health informa-
tion and education appropriate to his age.
Right to social activity
1'.',. A child shall not be deprived or hindered to participate in sports, cul-
lural or artistic activity or any other leisure activity except where it is not in the
hcst. interests of the child.

Right to live with parents and grow up in a caring environment Rights of child with disabilities

10. A child has a right to live with his parents and grow up in a caring and M. A child with disability has a right to dignity, special care, medical
peaceful environment unless it is proved in court that living with his parents lu'utrnent, rehabilitation, family and personal integrity, sports and recreation,
shall - education and training to help him enjoy a full and decent life and achieve the
Dealest degree of a self-reliance and social integration.
(a) lead to significant harm to the child;
472 473

Right of opinion Kij»ht to parental property

14. (1) A child has a right to express his opinion freely and to have
that opinion taken into account in any matter or procedure affecting the child.
(2) An opinion of a child under subsection (1) shall be given due
weight in accordance with the age and maturity of the child.
I ( ). A child has a right to (lie property of his parents but where the child is
horn out of wedlock, the child has a right to the property of his biological
mother irrespective of the mother's marital status.
Purcnt's and guardian's duties and responsibilities

Right to protection from exploitative labour M). (1) A parent or guardian of a child, whether -

15. A child has a right to be protected from exploitative labour as provid- (a) married or not; or
ed for under section 226 of this Act and other international instruments on child
labour. (b) the parents of the child continue to live together or not,
shall not deprive the child of his welfare.
Right to protection from torture and degrading treatment
(2) A parent or guardian has a responsibility, whether imposed by
law or otherwise, towards the child, including the responsibility to -

•
16. (1) A child has a right to be protected from torture or other cruel,
inhuman or degrading treatment or punishment, including any cultural practice
which degrades or is injurious to the physical, psychological, emotional and protect the child from neglect, discrimination, vio-
mental well-being of the child. lence, abuse, exploitation, exposure to physical and
moral hazards and oppression;
(2) A child shall be chastised in accordance with his age, physical,
psychological, emotional and mental condition and no discipline is justifiable (b) provide good guidance, care, assistance and mainte-
if by reason of tender age or otherwise the child is incapable of understand- nance for the child to ensure his survival and develop-
ing the purpose of the discipline. ment;

A child not to be subjected to harmful cultural rites, custom and tradition- (c) ensure that during temporary absence, the child shall
al practices be cared for by a competent person;

17. A child shall not be subjected to any cultural rites, customs or tradi-
tional practices that are likely to negatively affect the child's life, health, wel-
fare, dignity or physical, emotional, psychological, mental and intellectual
development.
Right to be protected from harmful substances
18. A child has a right to be protected from the use of hallucinogens, nar-
cotics, alcohol, tobacco products or psycho- tropic drugs and any other sub-
stances declared harmful, and from being involved in their production, traffick-
ing or distribution.
(d) exercise joint primary responsibility for raising the
child; and
(e) ensure that the child is not subjected to cultural rites,
customs or traditional practices that may negatively
affect the child's health, life, welfare, dignity, physical,
emotional, psychological, mental or intellectual devel-
opment,
rxccpt where the parent or guardian has surrendered his rights and responsibil-
ilirs in accordance with the law.

(!i) A parent or guardian shall be responsible Ini the registration of
Ihr hii Hi of his child and the name of the parent or guardian sh;ill appear on the
i n i i h eerlificate.
(4) Where a parent or guardian is unknown, the Registrar of Births
and Deaths shall cause the registration of birth of a child.
(5) A person who contravenes this section commits an offence and
is liable on conviction to community service and the court shall direct the
o (Tending party to register the child.
Children's duties and responsibilities
21. In the application of the provisions of this Act, a child shall have due
regard to his duties and responsibilities to -
(a) respect a parent, guardian, superior and an elder at all times and
assist them in case of need;
(b) serve the community by placing his physical and intellectual
abilities at its service;
(c) preserve and strengthen social and national solidarity; and
(d) uphold the positive values of the community in the child's
relations with other members of that community:
provided that due regard is had to the age and ability of the child.
State duties and responsibilities
22. The state has a duty to formulate policies which will ensure -
(a) protection of children from any form of discrimination and to
take positive action to promote their rights;
(b) that appropriate assistance for raising children when parents or
others charged with that responsibility fail to do so is provided;
(c) a child's survival and development;
(d) that there is awareness about children with disabilities, their
rights, their needs, their potential and their contribution in soci-
ety;
(e) the provision of rehabilitation services including community
based rehabilitation, support services including assistive
devices, equal education opportunities in an integrated setting,
full participation in family life, equal opportunities in recre-
ation and sports for children with disabilities;
(f) that a child's right to freedom of thought, conscience and reli-
gion is respected, subject to appropriate parental guidance;
(g) the accessibility to children of information and materials from
a diversity of sources, and it shall encourage the mass media to
disseminate information which is of social and cultural benefit
to a child, and take steps to protect him from harmful informa-
tion and material;
(h) protection of a child from all forms of maltreatment by parents
or others responsible for the care of the child and establish
appropriate social programmes for the prevention of abuse and
the treatment of the victims;
(i) provision of special protection for a child deprived of family
environment and ensure that appropriate alternative family
care or institutional placement is available in such cases;
(j) that there is special emphasis on the provision of primary and
preventive health care, public health education, reduction of
infant mortality and that no child is deprived of access to effec-
tive health services;
(k) that primary education is free and compulsory, all forms of sec-
ondary education are accessible, higher education is available
on the basis of capacity and that school discipline is consistent
with a child's rights and dignity;
(1) that minimum ages for employment and regulated working
conditions are set;
476
(m) protection oi* children from sexual exploitation and ahusc,
including commercial sex and involvement in pornography;
(n) that every effort to prevent the sale, trafficking and abduction
of children is made;
(o) that children do not take part in hostilities or are not recruited
into armed forces, and ensure the protection and care of chil-
dren who are affected by armed conflict;
(p) that child-victims of armed conflicts, torture, neglect, maltreat-
ment or exploitation receive appropriate treatment for their
recovery and social reintegration; and
(q) that every child alleged as having infringed the penal law is
treated in a manner consistent with his sense of dignity or
worth and that he is reintegrated into society.
PART IV - CHILD IN NEED OF CARE AND PROTECTION
Child in need of care and protection
23. (1) A child is in need of care and protection if -
(a) the child has been or there is substantial risk that the
child will be physically, psychologically or emotional-
ly injured or sexually abused by the parent or guardian
or a member of the extended family or any other per-
son;
(b) the child has been or there is substantial risk that the
child will be physically, emotionally or sexually
abused and the parent or guardian or any other person,
knowing of such abuse or risk, has not protected or is
unlikely to protect the child from such abuse or risk;
(c) a parent or guardian of the child is unfit or has neglect-
ed to exercise proper supervision and control over the
child and the child is falling into bad association;
477
(d) a paivul 01 guardian of the child has neglected or is
u n w i l l i n g to provide for the child's adequate care, food,
clothing, shelter, education and health;
(e) the child -
(i) has no parent or guardian; or
(ii) has been abandoned by the parent or guardian
and after reasonable inquiries the parent or
guardian cannot be found, and no other suitable
person is willing and able to care for the child;
(f) the child needs to be examined, investigated or treated -
(i) for the purpose of restoring or preserving the
child's health; and
(ii) the parent or guardian neglects or refuses to
have the child so examined, investigated or
treated;
(g) the child behaves in a manner that is, or is likely to be,
harmful to himself or to any other person and the par-
ent or guardian is unable or unwilling to take necessary
measures to remedy the situation or the remedial meas-
ures taken by the parent or guardian fail and as result
the child cannot be controlled by his parent or
guardian;
(h) there is such a conflict between the child and the par-
ent or guardian, that family relationships are seriously
disrupted, thereby causing the child emotional injury;
(i) the child is in the custody of a person who has been
convicted of committing an offence in connection with
that child;
(j) the child frequents the company of any immoral or
vicious person, or is living in circumstances calculated
478

to cause or induce his seduction, corruption or prostitu- (c) sexually abused il he has taken part, whether as a par-
ticipant or an observer, in any activity which is sexual
tion; in nature for the purposes of -

(k) the child is caused to be on any street, premises or

(i) any pornographic, obscene or indecent materi-
place for the purpose of -
al, photograph, recording, film, videotape or
(i) begging or receiving alms, whether or not there performance; or
is any pretence of singing, playing, performing
or offering anything for sale and as a result the (ii) sexual exploitation by any person for that per-
child becomes a habitual beggar; son's or other person's sexual gratification or
for commercial gain.
(ii) carrying out hawking, lotteries, gambling or
any other illegal activity which may be detri- Taking child into place of safety
mental to his health and welfare or may retard
his educational advancement; M. A police officer, the Department of Social Welfare, a chief or member
<>l the community who is satisfied on reasonable grounds that a child is in need
the child is affected or infected by HIV and AIDS and i it care and protection may take the child and place him in a place of safety.
0)
other life threatening conditions;
Presentation before Children's Court
(m) the child cannot be controlled by his parent or guardian
,'S. (1) Subject to section 24, a child who is taken into a place of safe-
or the person in whose custody he is; and
ly under section 24 shall be brought before a Children's Court within 48 hours
the child is below the age of fifteen years and is rxdusive of the time necessary for the journey from the place the child was so
(n) laken into custody to the Children's Court.
engaged in regular economic activity detrimental to his
health, educational advancement and development.
(2) If it is not possible to bring a child before a Children's Court
within the time specified under subsection (1), the child shall be brought before
(2) For the purposes of this Part, a child is -
a magistrate who may direct that the child be placed in -
(a) physically injured if there is injury to any part of the
child's body as a result of the non-accidental applica- (a) a place of safety; or
tion of force or an agent to the child's body;
(b) the care of a fit and proper person,
(b) emotionally and psychologically injured if there is
impairment of the child's mental or emotional func- until such time as the child can be brought before the Children's Court.
tioning that is evidenced by, among other things, a
mental or behavioural disorder, including anxiety, (3) If a child is in a place of safety or in the care of a fit and prop-
depression, withdrawal, aggression or delayed devel- er Person under subsection (2) -
opment;
 (a) the person in charge of the place of safety or such fit
and proper person shall have control over, and respon-
sibility for the maintenance of the child as the parent or
guardian of the child would have had; and
(b) the child shall continue in the care of the person
referred to in paragraph (a) notwithstanding that the
child is claimed by the parent or guardian or any other
person.
(4) The Department of Social Welfare, a police officer, chief or
member of the community who takes a child into a place of safety under this
section shall, immediately upon such taking, cause the parent or guardian of
the child to be notified of such taking.
(5) A police officer, chief or member of the community who takes
a child into temporary care under this section shall, immediately upon such
taking, notify the social worker of such taking.
Child in need of medical examination or treatment
26. (1) If the Department of Social Welfare, a police officer, chief or
member of the community who takes a child into a place of safety under sec-
tion 24 is of the opinion that the child is in need of medical examination or
treatment, the Department of Social Welfare, police officer, chief or member
of the community may, instead of bringing the child before a Children's Court
or magistrate, as the case may be, present the child before a medical officer.
(2) If the Department of Social Welfare, a police officer, chief or
member of the community does not take a child into a place of safety under
section 24 but is satisfied on reasonable grounds that the child is in need of
medical examination or treatment, he may direct, in writing, a person who
appears to him to have the care of the child for the time being to immediately
take the child to a medical officer.
(3) If the person referred to under subsection (2) fails to comply
within forty-eight hours with a direction made under that subsection, the
Department of Social Welfare, a police officer, chief or member of the com-
munity may take a child into temporary care for the purpose of presenting the
child before a medical officer.
Medical examination and treatment
.V/. (1) A medical officer before whom a child is presented under sec-
lion 26(1) -
(a) shall conduct or cause to be conducted an examination
of the child;
(b) may, in examining the child and if so authorised by a
social worker or police officer, administer or cause to
be administered such procedures and tests as may be
necessary to diagnose the child's condition;
(c) may provide or cause to be provided such treatment as
the medical officer considers necessary as a result of
the diagnosis.
(2) A child who is presented before a medical officer under subsec-
lii in (1) shall be exempted from medical fees with the authority of the
I Vpartment of Social Welfare.
Authorisation of hospitalisation
.'K. (1) If a medical officer who examines a child under section 27 is
> il I he opinion that the hospitalisation of the child is necessary for the purpos-
ri; of medical care or treatment, the Department of Social Welfare or a police
ullicer may authorise the child to be hospitalised.
(2) Where a police officer authorises a child to be hospitalised, he
.hall inform the Department of Social Welfare where an exemption for med-
u ill expenses is necessary.
* 'ontrol over hospitalised children
"> Where a child is hospitalised under section 28, the Director of Social
VVdfare shall have the same control over and responsibility for the mainte-
nance of the child as the person in charge of a place of safety would have had
I1 I he child had been placed in the place of safety.
Authorisation of medical treatment Sleps to he taken after medical examination or treatment

30. (1) If, in the opinion of a medical officer, a child referred to under U. (I) A child wlio is taken into a place of safety under section 24 and
section 26 requires treatment for a minor illness, injury or condition, a social i.-i medically examined or treated under section 27 shall be brought before a
worker or police officer may authorise such treatment. < 'hiklrcn's Court within forty- eight hours -

(2) If, in the opinion of a medical officer, a child referred to in sec- (a) of the completion of such examination or treatment; or
tion 26 is suffering from a serious illness, injury or condtion, or requires sur-
gery or psychiatric treatment, the Department of Social Welfare or police offi- (b) if the child is hospitalised, on his discharge from the
cer - hospital.

(a) shall immediately notify or take reasonable steps to
notify and consult the parent or guardian of the child or
any person having authority to consent to such treat-
ment; and
(b) may, with the written consent of the parent or guardian
or such person, authorise such medical or surgical or
psychiatric treatment as may be considered necessary
by the medical officer.
(2) If it is not possible to bring a child before a Children's Court
w i l h i n the time specified in subsection (1), the child shall be brought before a
iiui^istrate who may direct that the child be placed in -
(a) a place of safety; or
(b) the care of a fit and proper person,
u n t i l such time as the child can be brought before a Children's Court.

(3) If a medical officer has certified in writing that there is imme- (3) A child who is taken into care under section 25 (3) and subse-
diate risk to the health of a child, a social worker or police officer may autho- i|iirntly undergoes medical examination or treatment shall be returned to the
rise, without obtaining the consent referred to in subsection (2), such medical person under whose care the child was taken -
or surgical or psychiatric treatment as may be considered necessary by the
medical officer but only under any of the following circumstances - (i) upon the completion of such examination or treatment;
or
(a) that the parent or guardian of the child or any person
having authority to consent to such treatment has (ii) if the child is hospitalised, upon discharge from the
unreasonably refused to give, or abstained from giving, hospital.
consent to such treatment;
No liability incurred for giving authorisation
(b) that the parent or guardian or the person referred to in
paragraph (a) is not available or cannot be found with- i. 1 . (1) Where a child is examined or treated pursuant to section 27 -
in a reasonable time; or
(a) a social worker or police officer who authorises such
(c) the Department of Social Welfare believes on reason- examination or treatment;
i
able grounds that the parent or guardian or the person
referred to in paragraph (a) has ill-treated, neglected, (b) a medical officer who examines or treats the child; and
abandoned, exposed or sexually abused the child.
 (c) all persons acting in aid of the medical officer,
shall not incur any civil or criminal liability at law by reason only that the
child is examined or treated pursuant to that section.
(2) Nothing contained in subsection (1) relieves a medical officer
from liability in respect of any negligent medical examination or treatment of
a child.
Duty of medical officer
33. (1) If a medical officer is of the opinion that a child he is e x a m -
ining or treating is physically, psychologically or emotionally injured as a
result of being ill-treated, neglected, abandoned or exposed, or is sexually
abused, he shall immediately inform a social worker or police officer.
(2) A medical officer who fails to comply with subsection (1)
commits an offence and is liable on conviction to a fine not exceeding two
thousand maloti or to imprisonment for a period not exceeding two months or
to both.
Duty of member of the family
34. (1) If a member of the family of a child is of the opinion that the
child is physically, psychologically or emotionally injured as a result of being
ill-treated, neglected, abandoned or exposed, or is sexually abused, he shall
immediately inform a social worker, police officer or any local authority.
(2) A member of the family who fails to comply with subsection
(1) commits an offence and is liable on conviction to a community service.
Duty of child-care provider
35. (1) If a child-care provider is of the opinion that a child is physi-
cally, psychologically or emotionally injured as a result of being illtreated, neg-
lected, abandoned or exposed, or is sexually abused, he shall inform a social
worker or police officer.
(2) A child-care provider who fails to comply with subsection (1)
commits an offence and is liable on conviction to a community service.
Only of member of the community
U> (1) If a member of the community is of the opinion that a child is
physically, psychologically or emotionally injured as a result of being ill-treat-
r.l, neglected, abandoned or exposed to intoxication or is sexually abused, he
'.hull immediately inform a chief, police or the Department of Social Welfare.
(2) A member of the community who fails to comply with subsec-
un ( I ) commits an offence and is liable on conviction to a community service.
I' unctions of Children's Court in cases of children in need of care
(/. (1) Where a Children's Court is satisfied that any child brought
IK*I ore it under section 25 is a child in need of care and protection, it may -
(a) order the parent or guardian to enter into a binding
agreement to exercise proper care and guardianship for
a period specified by the Children's Court;
(b) make an order placing the child in the custody of a fit
and proper person for a period specified by the
Children's Court;
(c) without making any other order or in addition to an
order made under paragraph (a) or (b), make an order
placing the child under the supervision of -
(i) the Department of Social Welfare; or
(ii) some other person appointed for the purpose by
the Children's Court, for a period specified by
the Children's Court;
(d) make an order placing the child in a place of safety for
a period of two years from the date of the order or until
he attains the age of eighteen years, whichever is the
shorter; or
(e) in the case of the child who has no parent or guardian
or who has heen abandoned, make an order placing the
•ISO
child in the care, custody and guardianship <>!' a i'oster
parent found to be suitable -by the Director of Social
Welfare for a period of two years or until the child
attains the age of eighteen years, whichever is the
shorter, and pending that, place the child in a place of
safety.
(2) Where a Children's Court makes an order under subsection
(l)(e), the Director of Social Welfare shall, in order to give effect to the order,
immediately endeavour to place the child in the care, custody and control of a
foster parent.
(3) Where at any subsequent time a foster parent intends to return
a child who has been placed in his care, custody and guardianship pursuant to
subsection (1) (e), he shall report in person to a social worker and bring the
child before the Department of Social Welfare, and the Department of Social
Welfare shall place the child temporarily in a place of safety and inform a
Children's Court.
(4) If during the period mentioned under subsection (1) (e) the par-
ent or guardian of the child concerned has not claimed the child or made any
appearance, a Children's Court may -
(a) at the expiry of that period; and
(b) if the Children's Court is satisfied that reasonable steps
have been taken by the Department of Social Welfare
to trace the parent or guardian of the child, make an
order placing the child for adoption by the foster parent
or any person who wishes to adopt the child, and in any
such case, the parent's or guardian's consent for the
adoption of the child shall be dispensed with.
(5) Before making an order under subsection (1) or (4), a
Children's Court shall consider and take into account a report prepared by the
Department of Social Welfare which -
(a) shall contain such information as to the social back-
ground, general conduct, home surrounding, school
record ;md medical history of a child as may enable the
Children's Court to deal with the case in the best inter-
ests of the child; and
(b) may include any written report of a registered medical
practitioner or any other person whom the court thinks
fit to provide a report on the child.
(6) In order to enable the Department of Social Welfare to prepare
and submit the report referred to in subsection (6), a Children's Court may -
(a) adjourn the case for a period not exceeding two
months; and
(b) make in respect of a child, as an interim order having
effect only during the period of adjournment, any order
which it could have made under subsection (1).
(7) A Children's Court may, in making any order under subsection
1 1 ) , impose such conditions or give such directions as it may deem fit for the
pin pose of ensuring the safety and well-being of a child in respect of whom
Mirh order is made, and such conditions or directions may include the follow-
(a) that the parent or guardian of the child accompanied by
the child shall attend interactive workshops organised
at designated places;
(b) if the child is placed at a place of safety, the
Department of Social Welfare shall accompany the par-
ent or guardian for the first visit to see the child and
thereafter the parent or guardian shall visit the child on
a regular basis as determined by the Children's Court;
or
(c) if the child is in an educational institution, that the par-
ent or guardian shall consult with the child's teacher
and principal once a month.
 (8) A parent or guardian who fails to comply with any ol (lie con-
ditions imposed or directions given under subsection (7) commits an offence
and is liable on conviction to a fine not exceeding twenty five thousand maloti
or to imprisonment for a period not exceeding two years or to both.
(9) An order made under subsection (1) shall not be made without
giving a child, parent or guardian of the child an opportunity to attend the pro-
ceedings and be heard.
(10) Notwithstanding subsection (9), an order made under subsec-
tion (1) may be made if a Children's Court is satisfied on information given by
a social worker that a parent or guardian of a child, having been required to
attend, has failed to do so, or is not available or cannot be found within a rea-
sonable time.
(11) Where a Children's Court is not satisfied that a child brought
before it under subsection (5) or (10) is in need of care and protection, it shall
order the child to be returned to the care and custody of his parent or guardian
with close monitoring by the Department of Social Welfare.
(12) A Children's Court may, on the application of -
(a) the Department of Social Welfare;
(b) a person in charge of a place of safety;
(c) a parent or guardian of a child;
(d) a child; or
(e) any person who has information,
amend, vary or revoke any order made under this section -
(i) if it is satisfied that it is in the best interests of
the child to do so; or
(ii) upon proof that the circumstances under which
the order was made have since changed after
the making of the order.
PART V ADMINISTRATION OF PROPERTY OF
CHILDREN BY OFFK IK (>!•' Tl IE MASTER OF THE HIGH COURT
Reporting of estate to the office of the Master of the High Court
W. Where a parent is survived by minor children, the surviving parent,
)',n;irdian, closest relative, or any member of the community shall report the
• -.-iliac to the office of the Master of the High Court within two months of the
i leal h of the parent.
Seeking permission of the office of the Master of the High Court for alien-
utiou, disposal of or sale of children's property
i'». (1) A surviving parent, guardian, closest relative or any member of
t i n - community shall seek permission of the office of the Master of the High
< ourt when alienating, disposing of or selling children's property.
(2) A surviving parent, guardian, closest relative or any member
• >! the community who fails to comply with the provisions of this section, corn-
mils an offence and is liable on conviction to a fine not exceeding five thou-
•i.iinl maloti or to imprisonment for a period not exceeding five months.
Duties of the Master of the High Court
•10, The Master of the High Court shall -
.U-
(a) in administering a child's share of parental property, ensure > ; j .
that the best interests of the child are met;
(b) where assets of an estate are being alienated, disposed of or
sold, ensure that permission has been granted and a child is not
left destitute or homeless;
(c) have power to administer or confiscate property belonging to
children and to delegate such powers to any person or institu-
tion;
(d) where he discovers that the property belonging to children has
been negligently used by the successful heir or any person,
request the concerned person to pay for that property, failing
 wliich he shall make an application to court for such a person
to pay for such property;
(e) where parents married in community of property desert, neg-
lect or abandon children, hear evidence to determine the con-
tribution of the surviving spouse towards maintenance of such
children;
(f) where the surviving spouse is found not to have made any con-
tribution under paragraph (e) -
(i) give to such spouse a child's share only;
(ii) exercise discretion to award any amount of money
depending on the circumstances of the case; or
(iii) divide the half share of the abandoning spouse between
his children; or
(g) have power to invest money brought to his office with any
financial institution.
Duties of the District Administrator in the administration of the property
of children
41. The District Administrator before whom a successful heir of a
deceased person is presented shall -
(a) make sure that the names of minor children of the deceased
appear in all the documents; and
(b) liaise with the Master of the High Court.
Duty of employer in relation to property belonging to children
42. (1) An employer shall, after the death of his employee who has
minor children, send all monies to the office of the Master of the High Court
who will administer and invest such monies where necessary.
(2) An employer who fails to comply with the provisions of this
seetion commits an offence and is liable on conviction to a fine not exceeding
Irn thousand Maloti or to imprisonment for a period not exceeding ten months.
Duties of financial institutions
K (1) No financial institution shall open and operate any account in
irspect of an orphaned child without prior consent of the Master of the High
( '<>l I it.
(2) A financial institution which contravenes the provisions of this
'.rclion commits an offence and is liable to a fine not exceeding ten thousand
Maloti or imprisonment for a period not exceeding ten months.
PART VI - OFFENCES IN RELATION TO HEALTH AND
WELFARE OF CHILDREN
III -treatment, neglect, abandonment or exposure of children to abuse
•M. (1) A person who, being a person having the care of a child, abus-
»•-,, neglects, abandons or exposes the child in a manner likely to cause the child
physical, psychological or emotional injury or causes or permits the child to
In- so abused, neglected, abandoned or exposed commits an offence and is
linhle on conviction to a fine not exceeding two thousand Maloti or to impris-
• mmciit for a period not exceeding two months or both.
(2) A parent or guardian or other person legally obliged to main-
i.nii a child shall be deemed to have neglected the child in a manner likely to
. mise the child physical, psychological or emotional injury if, being able to so
piuvide from his own resources, he fails to provide adequate food, clothing,
inrdical treatment, lodging, care, guidance and protection to the child.
< liihlrcn not to be used for begging
l'i A person who causes or allows a child to be on any street, premises or
I'l.ur lor the purposes of -
(a) begging, receiving alms, whether or not there is any pretence
of singing, playing, performing or offering anything for sale; or
•w,
(b) carrying out illegal hawking, lotteries, gambling or oilier ille-
gal activities detrimental to the health, welfare and education-
al advancement of the child,
commits an offence and is liable on conviction to a fine not exceeding ten
thousand maloti or to imprisonment for a term not exceeding ten months or
both.
Leaving a child without supervision and care
46. A person who, being a parent or guardian or a person for the time being
having the care of a child, leaves the child -
(a) without making provision for the supervision and care of the
child;
(b) for a period which is unreasonable having regard to all
the circumstances; or
(c) under conditions which are unreasonable having regard
to all the circumstances,
commits an offence and is liable on conviction to a community service.
PART VH - CONDITIONS FOR TAKING A CHILD INTO CARE
Conditions for taking a child into care
47. (1) Where a person takes a child into his care or guardianship he
shall, together with a person under whose care the child was at the time of the
taking of the child, notify a chief, local authority or the Department of Social
Welfare, within one week of the taking of the child.
(2) On receiving a notification under subsection (1), the
Department of Social Welfare shall make such inquiry as it thinks fit as to -
(a) the circumstances and the reasons for the taking; and
(b) the suitability for that purpose of the person who has
taken the child into his care or guardianship.
(3) If, after tin- inquiry referred to under subsection (2), the
I »rp;irlmcnt of Social Welfare t h i n k s il expedient to do so in the best interests
.1 ihe child, it may either -
(a) order that a child be returned to the care of his parent
or guardian or the person in whose care the child was
at the time of taking; or
(b) permit the taking of a child on such terms and condi-
tions as the social worker may require.
(4) Where the taking of a child by any person has been permitted
n- subsection (3)(b) subject to any term or condition and default is made in
• "implying with such terms and conditions, the Department of Social Welfare
ni.iy, by warrant, order that the child -
(a) be taken out of the care or guardianship of such person;
or
(b) be placed in a place of safety or under the guardianship
of a relative or other fit and proper person on such
terms and conditions as the Department of Social
Welfare may require until the child attains the age of
eighteen years or for the shorter period.
(5) The Department of Social Welfare shall, on receiving any noti-
I n i i m i i under this section, record the particulars of such notification in a reg-
tutci in such form as may be prescribed.
(6) A person who fails to comply with subsection (1) commits an
ullriu'e and is liable on conviction to a community service.
Application
IK (I) The provisions of this Part shall apply to the taking of a child -
(a) into the care or guardianship of any person -
(i) in accordance with an order of court; or
 r-
(ii) by any social worker or police officer acting irporl in person to the Director of Social Welfare.
under this Act;
(2) The Director of Social Welfare shall, on receiving a report
(b) who is in a place of safety or an orphanage, institution in.nlr pursuant to subsection (1) -
or centre -
(a) return the child to the parent, guardian or any other
(i) maintained by government; or person from whom the child was taken if the parent,
guardian or any other person is available;
(ii) approved by the Minister;
(b) take the child into temporary care until the parent,
(c) as a boarder at an educational institution; and guardian or any other person from whom the child was
taken is available;
(d) who is regularly attending an educational institution
into the care of a friend or relative, or a parent or (c) notify, in writing, the parent, guardian or any other
guardian with the consent of the parent or guardian. person from whom the child was taken; or

(2) For the purposes of this Part, a "guardian" of a child means -
(a) a person lawfully appointed by a will or any other legal
document of a similar nature or by an order of a court
to be the guardian of the child;
(d) where the parent, guardian or any other person from
whom the child was taken cannot be traced, sent to his
last known address, a letter notifying the parent,
guardian or any person of the child's intention to return
to him.

(b) a person who has lawfully adopted the child; or I'irsciitation of child before social worker

(c) a relative who has been formally elected and left with
up-bringing of orphaned children and any other chil-
dren left by parents for various reasons.
Subsequent obligations towards taking child into care
49. (1) Where a person has taken a child in accordance with section
47, he shall, if -
MI (1) Where a social worker or any other designated person, such as
i liirl, has reasonable grounds to believe that there is, within the area of his
liittMliction, a child in respect of whose taking no notification has been made
cm;.ILml to section 48, he may, by written notice or summons under his hand
<n h Ii rssed to the person who has or is believed to have the care or guardianship
nl 11 ir child, require that person to appear and to present the child before him
til i IK* lime and place specified in the written notice or summons for the pur-
IMIM-S <>!' an inquiry under Subsection (4).

(a) he intends to return the child to the parent or guardian (2) Where a person to whom a written notice or summons has been
of the child or any other person from whom the child 'it i \l under subsection (1) fails to present a child at the time and place spec-
was taken; or i l n .1 in (he written notice, the Department of Social Welfare or any other des-
Igimli'd person charged with the similar responsibility may apply to a magis-
(b) the child has left his care without his knowledge or n til*- lor a search warrant to search for the child and to produce the child before
consent, Iht I Vpai tment of Social Welfare.
49(>

ily-
(3) A child named or described in such warrant may l>e lemporar- • (b) be. placed in a place of safety or in the care of a relative
or other lit and proper person on such terms and condi-
tions as the social worker may require until the child
(a) placed in a place of safety; or attains the age of eighteen years or for any shorter peri-
od.
(b) placed in the care of a relative or other fit and proper
person on such terms and conditions as the Department PART VIII - FOSTERAGE AND ADOPTION
of Social Welfare may require, until the Department of
Social Welfare has completed its inquiry under this IVrson who can foster or adopt
Part.
M (1) A person who -
(4) The Department of Social Welfare shall make such inquiry as
it thinks fit as to - (a) is above the age of twenty-five years;

(a) the circumstances and the reasons for the taking of a (b) is of good behaviour,
child referred to in subsection (1); and
(c) is of proven integrity,
(b) the suitability of the person who has taken a child into
his care or guardianship. (d) is of sufficient means of livelihood, and
•
(5) If, after the inquiry mentioned under subsection (4), the (e) has no criminal record,
Department of Social Welfare deems it expedient in the best interests of the
child, it may - HHW !)(-' a foster or adoptive parent to a child.

(a) order that the child be returned to the care of the parent
or guardian or the person in whose care the child was
at the time of such taking; or
(b) permit the taking of the child on such terms and condi-
tions as the Department of Social Welfare may require.
(6) Where the taking of a child by any person has been permitted
under subsection (5) (b) subject to any terms or conditions and default is made
in complying with such terms or conditions, the social worker may by warrant
under his hand order that the child -
(2) A person who is a relative of a child and meets the conditions
»pn Hied under subsection (1), and is at least nineteen years can foster a child.
Application to foster or adopt a child
(I) An application to foster or adopt a child shall be made to the
Imr.liT of Health and Social Welfare.
{2) The Minister of Health and Social Welfare shall, in considering
•in implication made pursuant to subsection (1), be guided by standards and
i I' line;; set by the Department of Social Welfare.

(a) be taken out of the care or guardianship of such person;

and
Parental rights and responsibilities of foster parent i i n . ( of adoption on parental

53. A foster parent in whose care a child is placed shall have the same •<• (1) Where an adoption order is made -
rights and responsibilities in respect of the child's care and guardianship as the
parent of the child while the child remains in his care. (a) the rights, duties, obligations and liabilities, including
those under customary law of parents of a child or of
Duties of the Department of Social Welfare any other person connected with the child, of any
nature whatsoever, shall cease; and
54. (1) The Department of Social Welfare shall facilitate assessment of
a potential foster and adoptive parent and the conditions surrounding a child to (b) an adoptive parent of a child shall assume the parental
be fostered or adopted. rights, duties, obligations and liabilities of the child
with respect to care, guardianship and education as if
(2) In the case of adoption, after the assessment referred to in sub- the child were born to the adoptive parent.
section (1), the Department of Social Welfare shall make an application in
(2) Where an adoption order is obtained jointly by a husband and
respect of a child to the High Court.
w i l r , they shall assume parental responsibilities jointly and a child shall relate
In tlu'in as parents as if born naturally to them as husband and wife.
Application for adoption
(3) Where an adoption order is made by an individual, he shall
55. (1) An application for an adoption order may be made jointly by a
RkNiiinc parental responsibilities and a child shall relate to him as a parent as if
husband and wife.
In 11 ii naturally to him.
(2) Where an application for an adoption order is made jointly by
(4) An adopted child shall be a member of the clan, lineage or
a Husband and wife, there shall be a written proof to that effect.
"ilin j'.roup, and as such will be entitled to all rights to the family rituals in
it- i nidance with customary law.
(3) An adoption order may be granted to an individual person pro-
vided he meets the conditions set under section 61.
Mrslriction on making adoption orders
(4) Where an application for an adoption order is made in respect
'• / An adoption order shall not be made unless the applicant or, in the case
of a child who has attained the age of ten years and is open for adoption, the
t i l .i joint application, one of the applicants -
consent of the child shall be sought and his opinion shall be taken into consid-
eration.
(a) is twenty-five years of age and is at least twenty one years
older than a child; or
(5) An adoption order can be terminated by the High Court if the
adoption is proved not to be in the best interests of the child.
(b) is a relative of a child and is twenty-five years of age.
(6) No payment shall be made to a person who gives away his
I 'onsi'iit of parents or guardians
child for adoption.
'•K (I) An adoption order shall only be made with the consent of par-
(7) Permission of parents of a child who is being adopted shall be
•ntN or guardian of a child.
sought and given before an application for adoption order is made.

(2) The I ligh Court: may dispense with the consent of any parent or
guardian of a child if satisfied that the parent or guardian has neglected or per-
sistently ill-treated the child, or the person cannot be found or is incapable of
giving consent or that the consent is unreasonably withheld.
(3) A parent or guardian of a child who has given consent for the
adoption order is not entitled to remove the child from the care and guardian-
ship of the applicant except with the permission of the High Court and in
recognition of the best interests of the child.
(4) The High Court may require the consent of any person for an
adoption order if it considers that the person has any rights or obligations in
respect of a child such as under an agreement, a court order or under custom-
ary law.
(5) Where an application for adoption is made in respect of a child
who is born out of wedlock, the natural father of the child, if known and avail-
able, shall be consulted.
(6) Where an application for adoption is made in respect of a child
who was abandoned and his parents or guardian could not be traced, the par-
ents or guardian shall have no power to claim back the child from the adoptive
parents.
(Conditions for adoption order
59. (1) Before the High Court makes an adoption order, the High
Court shall be satisfied that -
(a) the consent required under this Part for adoption order
has been obtained and that a parent or guardian of a
child understands that the effect of the adoption order
means permanent deprivation of parental rights;
(b) it is in the best interests of a child and that the wishes
of the child have been considered if the child is capa-
ble of forming an opinion;
(c) an opinion of a child has been sought and considered;
3D]
(d) if a child is al leasl leu years of age, the child's consent
lo lhe adoption has been obtained unless it is impossi-
ble for the child to grant such consent; and
(e) the applicant has not received or agreed to receive any
payment and that no person has made or agreed to
make any payment or given or agreed to give any
reward to the applicant for the adoption except where
the High Court has ordered otherwise.
(2) The High Court may impose conditions when granting an
adoption order and require the applicant to enter into a binding agreement and
make such provisions in respect of a child as the High Court considers neces-
sity.
(3) The adoption order shall include the following particulars if
known -
(a) date, place and country of birth of a child;
(b) name, gender and surname of a child before and after
the adoption;
(c) name, surname, age, address, citizenship and occupa-
tion of an adoptive parent; and
(d) date of the adoption order, unless the High Court
directs otherwise.
Knowledge of adoption by child
MI (1) An adoptive parent shall, under the guidance of a social work-
ci. inform an adopted child of the fact that he is adopted and of his parentage,
hut Ihis disclosure shall only be made if it is in the best interests of the child
(tinI il the child is of an understanding age.
(2) No person other than an adoptive parent shall disclose adoption
in .in adopted child.
502
(3) Subject to subsection (1), an adopted child shall, where possi-
ble, have access to photos, letters or any form of artifacts that might help him
to understand his roots better.
(4) If an adopted child has any siblings, the child shall be informed
of any siblings and be helped to maintain a link with the siblings, either
through visits, letters or other communication channels.
(5) A person who fails to comply with the provisions of this sec-
tion commits an offence and is liable on conviction to a fine not exceeding two
thousand Maloti or to imprisonment for a period not exceeding two months or
both.
Inter-country adoption
61. (1) A person who is not a citizen of Lesotho may adopt a Mosotho
child, if he -
(a) has been found eligible to adopt by an adoption agency
of his country;
(b) does not have a criminal record;
(c) has a recommendation concerning his suitability to
adopt the child from his country's social welfare office
or an adoption agency; and
(d) has satisfied the High Court that his country of origin
will respect and recognise the adoption order and grant
residence or citizenship status to the child.
(2) For the purposes of an application under this section, the social
worker shall submit a report to assist the High Court in considering the appli-
cation, and the High Court may, in addition, require an applicant's lawyer to
make a report in respect of the application.
(3) The restrictions and conditions under sections 57 and 59 shall
apply in respect of an application under this section.
(4) The High ( l o u i l shall nuikc an interim adoption order for a
l». i i < u | not less than two years on condition that supervision of a child be done
I'V social workers of the country where the adoptive parents reside and post-
I H I I H - the determination of the application.
(5) Where a foreign child has been adopted by a Mosotho who is
n Miling in Lesotho, that person shall report the matter to the Department of
'.iiciiil Welfare which shall provide the High Court with such information rel-
r v n u l to the adoption.
(6) Where a foreign child has been adopted by a Mosotho who is
(muling in Lesotho, the child shall be afforded all citizenship rights in Lesotho.
(7) A person who is not a Mosotho but is residing in Lesotho and
lui', it working contract of not less than twelve months may adopt a child at the
of the Minister of Health and Social Welfare.
(8) A supervision referred to in subsection (7) shall be done by a
'.< >i ial worker of the country where the adoptive parents will reside in collab-
with international police office.
(9) For the purposes of subsection (5), the High Court may order
i- I >cpartment of Social Welfare to report regularly on the welfare status of a
i n n rrned child.
(10) Where an adoptive parent requires medical tests to be adminis-
l» i! (I on a child, he shall bear the costs for testing.
•';)
Devolution of property on adoption
fi,1 (1) Where an adoptive parent dies intestate, his property shall
tlrvolvc on an adopted child in all respects as if the adopted child is the natu-
liil child of the adoptive parent.
(2) Estates of adoptive parents shall be subject to administration of
|Mu|H*ity by the Master of the High Court.
(3) If it appears to the High Court on a claim made that a disposi-
tion of property devolving on an intestacy has been exercised unfairly against
HII adopted child, the High Court may make such an order as it thinks equi-
S04
table to the adopted child in relation to property devolving on the intestacy in
accordance with the law.
Testamentary disposition
63. (1) In a testamentary disposition of property, whether in writing or
not, made after the date of an adoption order -
(a) any reference, whether expressed or implied, to a child
of an adoptive parent shall, unless the contrary inten-
tion appears, be construed as a reference to the adopt-
ed child;
(b) where a disposition made by an adoptive parent prior to
adoption order makes no provision for an adopted
child, the adopted child may apply to the High Court to
vary the disposition to provide for the adopted child
from the estate of the adoptive parent;
(c) a reference to a child in a will made by natural parents
of the adopted child shall not be construed as a refer-
ence to the adopted child unless the contrary intention
appears;
(d) any reference to a person related to an adoptive parent
shall, unless the contrary intention appears, be con-
strued as a reference to a person as if he were the rela-
tive of the adopted child.
Register of adopted children
64. (1) The Director of Social Welfare shall maintain a register of
adopted children, whether adopted inside or outside Lesotho, in which shall be
recorded particulars of adoption orders or interim orders as the High Court may
direct to be made under this Part.
(2) Every adoption order or interim order made by the High Court
shall be served on the Director of Social Welfare by the Registrar of the High
Court within seven days of the making of the order.
Procedure in adoption proceedings
<»\) Where the High Court hears an adoption application, it shall -
(a) proceed in camera unless open proceedings will be in
the best interests of a child;
(b) admit documentary evidence relating to the consent
required for the order;
(c) require the Department of Social Welfare to represent
the interests of a child in the proceedings relating to an
adoption order or an interim order;
(d) require the Department of Social Welfare to prepare a
social inquiry report to assist the court to determine
whether the adoption order is in the best interests of the
child or not; or
(e) request any other information that the High Court may
" need.
PART IX - TRAFFICKING AND ABDUCTION OF CHILDREN
ul transfer of possession, custody or control of child
<><> (1) A person who takes part in any transaction the object or one of
tin objects of which is to transfer or confer, wholly or partly, temporarily or
(MM niiinently, the possession, custody or control of a child for any valuable con-
Mtlruilion, commits an offence and is liable on conviction to a fine not exceed-
ing twenty thousand maloti or to imprisonment for a period not exceeding five
yrius or both.
(2) A person who without lawful authority or excuse harbours or
liir, in his possession, custody or control a child with respect to whom the tern-
I ' M i . u y or permanent possession, custody or control has been transferred or
i ' M i l r n c d for valuable consideration by any person within or outside Lesotho,
t i m i t n i l s an offence and is liable on conviction to a fine not exceeding one
i'il thousand maloti or to imprisonment for a period not exceeding five
.IIS.
506 " 31J7

(3) For the purposes of subsection (2), if any person harbours or (i) alit'i having been transferred for valuable con-
has in his possession, custody or control a child without lawful authority or sideration; or
excuse, the child shall, until the contrary is proved, be presumed to be the child
with respect to whom the temporary or permanent possession, custody or con- (ii) by fraud, misrepresentation or any false pre-
trol has been transferred or conferred for valuable consideration. tences;

Trafficking of child by false pretences (b) has been transferred to the custody or control of any
person for valuable consideration either within or out-
67. (1) A person who - side Lesotho; or

(a) by or under any false pretences or representation made;
or
(b) by fraudulent or deceitful means,
either within or outside Lesotho, brings into or takes out of or assists in bring-
ing into or taking out of Lesotho, a child who is not in his lawful custody,
guardianship or parentage commits an offence and is liable on conviction to a
fine not exceeding One Million Maloti and life imprisonment.
(c) is being detained against his will by some person other
than his parent or guardian, the Department of Social
Welfare,
In- shall immediately cause the arrest of the person suspected and assist the
polite in investigating the matter.
(2) The Department of Social Welfare shall place such a child into
ii |ihire of safety.

(2) A child's consent to his trafficking shall not be a defence. Inking a child without appropriate consent

Examination of child and person in charge /( i (1) A person, parent or guardian who -

68. The Department of Social Welfare or any person authorised in writing (a) does not have the lawful custody of a child; and
by the Department of Social Welfare may require -
(b) takes a child, without appropriate consent, whether
(a) a child who has entered or been brought into Lesotho; and within or outside Lesotho;

(b) any person who may appear to have custody or control of such
child, to appear with the child before the Department of Social
Welfare, at any reasonable time and at any convenient place to
be examined.
Social worker to cause arrest
i on ii nils an offence and is liable on conviction to a fine not exceeding ten thou-
Maloti or to imprisonment for a period not exceeding ten months or both.
(2) A person has lawful custody of a child under this section if he
lor, Uvn conferred custody of the child by virtue of any written law or by an
..c l i < i l "a Children's Court.

69. (1) If a social worker has reasonable cause to believe that a child - P) It shall be a defence under this section if a person takes or
fti'mls a child away without the consent of the person having lawful custody of
(a) has been brought into Lesotho either - I h r . h i l t l it'-

.SOS
the person -
does it in the believe that the other person con-
(i)
sented, or would have consented, if he was
aware of all the relevant circumstances; or
(ii) has taken all reasonable steps to communicate
with the other person but has been unable to
communicate with him;
(b) the person has reasonable grounds to believe that the
child has been abused, neglected, abandoned or
exposed in a manner likely to cause the child physical,
psychological or emotional injury; or
(c) the other person has unreasonably refused to consent
although he was aware of all the relevant circum-
stances.
Inquiries and placement of a child brought into or out of Lesotho or
acquired under false pretences
71. (1) If the Department of Social Welfare has reasonable cause to
believe that a child -
(a) has been brought into or is to be sent out of Lesotho
and the custody of the child has been acquired either-
(i) after having been procured for the purpose of
prostitution; or
(ii) by fraud, false representation or false pretence
for the purpose of prostitution;
(b) has been procured either within or outside Lesotho for
the purpose of being used, trained or disposed of as a
prostitute; or
(c) is being detained against his will for the purposes of -
DUV
(i) prostitution or immoral purposes; or
(ii) being sent out of Lesotho for the purposes of
prostitution or for immoral purposes,
iln ..trial worker may order the child to be removed to a place of safety and
t i n i luld shall be temporarily placed in such a place of safety.
(',',) A child who is temporarily placed in a place of safety pursuant
In niilistvlion (1) shall be brought before a Children's Court within forty - eight
liMiir. exclusive of the time necessary for the journey from the place where the
• Inl'l was so removed to the Children's Court.
('.*) If it is not possible to bring a child before a Children's Court
*MI hm 11 ic time specified under subsection (2), the child shall be placed in a
1*1.1- r ol safety until such time as the child can be brought before the Children's
(4) A Children's Court before whom a child is brought in terms of
iM-i lion (3) shall order the child to be detained in a place of safety until -
(a) an inquiry into the circumstances of the child's case has
been completed; and
(b) a report of the inquiry has been submitted to the
Children's Court by the social worker under subsection
(6).
(5) An inquiry made pursuant to subsection (4) (a) shall be made
hy the I )opartment of Social Welfare.
(ft) The Department of Social Welfare shall complete the inquiry
Km I submit the report of the inquiry to a Children's Court within a period not
» '. trding one month from the date of admission of a child into the place of
il. IV
(7) If after considering the report submitted under subsection (6) a
» h i l i l u - i r s Court is satisfied that a child brought before it is in need of protec-
tion .uul rehabilitation, it may
 (a) order the child to be kept in a phuv ol safely lor such
period not exceeding three years IVoni I ho date of the
order as the Children's Court may in the best interests
of the child deem fit; or
(b) make an order placing the child under the supervision
of a social worker for a period not exceeding three
years from the date of the order as the Children's Court
may in the best interests of such child deem fit.
(8) An order made under subsection (7) may have the effect of
extending the period of such placement or supervision, as the case may be,
until the date on which the child attains the age of eighteen years.
(9) If a Children's Court is not satisfied that a child brought before
it is in need of protection and rehabilitation, it may order the child to be
returned to the care and custody of the parent or guardian.
72. (1) If it appears to a Children's Court that there is reason to believe
that a child had been taken or send away without the consent of a person who
has lawful custody of the child as described in section 70, it may make a recov-
ery order.
(2) A recovery order made pursuant to subsection (1) may be made
by a Children's Court on application by or on behalf of any person who has
lawful custody of a child.
(3) For the purposes of this section, a "recovery order" may -
(a) direct any person who is in a position to do so to pro-
duce a child on request to any authorised person;
(b) authorise the removal of a child by any authorised per-
son;
(c) require any person who has information as to a child's
whereabouts to disclose that information to the autho-
rised pcrson;or
(d) authorise any police officer to enter into any premises
specified in the order and search for a child.
(•I) A person who obstructs an authorised person from exercising
ilu lowers under subsection (3) commits an offence and is liable on convic-
tion lo ;i line not exceeding two thousand Maloti or to imprisonment for aperi-
H.I mil exceeding two months or both.
PART X - CHILD IN NEED OF REHABILITATION AND
URGENT PROTECTION
Child In need of rehabilitation
7,» A child is in need of rehabilitation if the child -
(a) is being induced to perform any sexual act, or is in any physi-
cal or social environment which may lead to the performance
of such act;
if (b) lives in or frequents any brothel or place of assignation;
(c) is habitually in the company or under the control of brothel-
keepers or procurers or persons employed or directly interest-
ed in-the business carried on in brothels or in connection with
prostitution; or
(d) is a victim of sexual violence or labour exploitation or is denied
access to education; or
(e) is a habitual substance abiiser.
of a child in need of rehabilitation to a place of safety
M (I) The Department of Social Welfare, a police officer, chief or a
MM mliiT of the community who is satisfied on reasonable grounds that a child
IN in nrrd of rehabilitation may order the child to be removed to a place of safe-
ill*.-: child shall be temporarily kept in such place of safety.
51 :>
(2) A child who is temporarily kept pursuant lo subsection (1) shall
be brought before a Children's Court within forty-eight hours exclusive of the
time necessary for the journey from the place where the child was so removed
to the Children's Court.
(3) If it is not possible to bring a child before a Children's Court
within the time specified in subsection (2), the child shall be kept in a place of
safety for a period not exceeding seven days within which the child shall be
brought before the Children's Court.
(4) If a Children's Court is satisfied that a child brought before it
is in need of rehabilitation, it may order the child to be kept in a place of safe-
ty until -
(a) an inquiry into the circumstances of the child's case
under section 75(1) has been completed; and
(b) a report of the inquiry has been submitted to the
Children's Court by the social worker pursuant to sec-
tion 75.
(5) If a Children's Court is not satisfied that a child brought before
it is in need of rehabilitation, the Children's Court shall order the child to be
returned to the care of the parent or guardian.
Orders upon completion of an inquiry
75. (1) An inquiry referred to under section 74(4) shall be made by a
social worker.
(2) The Department of Social Welfare shall complete the inquiry
and submit a report to a Children's Court within a period not exceeding one
month from the date of admission of a child to a place of safety under section
74 (1).
(3) If after considering a report submitted under subsection (2), a
Children's Court is satisfied that a child brought before is in need of rehabilita-
tion, the Children's Court may, subject to the other provisions of this section -
(a) older Ihe child to he kept in a place of safety for a peri-
od not exceeding three years from the date of the
admission of the child into a place of safety under sec-
tion 74 (1) and the order shall be an authority for his
admission into a place of safety;
(b) make an order placing the child for a period not
exceeding three years from the date of the order in the
care of the person whether a relative or not who is will-
ing and whom the Children's Court considers to be a fit
and proper person to undertake care of such child;
(c) make an order requiring the parent or guardian of the
child to enter into a binding agreement, with or without
sureties, as the Children's Court may determine, for a
period not exceeding three years from the date of the
order, subject to such conditions as the Children's
Court thinks fit for the proper care and guardianship of
the child; or
(d) make an order placing the child under the supervision
of a social worker, subject to such conditions as the
Children's Court thinks fit and for a period not exceed-
ing three years from the date of the order.
(4) An order made under subsection (3)(a) or (d) may have the
• Id t of extending the period of such placement or supervision, as the case
hr, until a child attains the age of eighteen years.
5S) A Children's Court may, on its own or on an application by or
mi hrlial f of a child, parent, guardian, the Department of Social Welfare or per-
n» charge of a place of safety, reduce the period of placement upon evi-
material change in the circumstances that gave rise to the order of
(0) A Children's Court shall, when making an order under subsec-
nun i i ) ( a ) or (d), order a parent or guardian of a child to enter into a binding
•II-M i iiir.ul lor the duration of the order with such conditions which may
in- luilr
514
(a) in the case of the provisions of siikstvlion (.l)(u), reg-
ular visits to the place of safety where the child is kept;
and
(b) in the case of the provisions of subsection (3)(d),
ensuring that the child remains indoors within stipulat-
ed times.
(7) A person who is ordered to enter into a binding agreement
under subsection (3)(a) and (d), as the case may be, and fails to comply with
any of the conditions for the agreement, commits an offence and is liable on
conviction to a fine not exceeding two thousand Maloti or to imprisonment for
a period not exceeding two months or both.
(8) A child who is kept in a place of safety under subsection (3)(a)
shall, on the expiration of the period of placement whether by -
(a) lapse of time; or
(b) reason of any reduction made pursuant to subsection
(6), be placed under the supervision of the Department
of Social Welfare or other person appointed by the
Director of Social Welfare for such purpose.
(9) The period of supervision for the purpose of subsection (8)
shall be determined by a Children's Court after hearing the recommendations
of the Department of Social Welfare and consulting with a child, parent or
guardian but the period of such supervision shall not in any case exceed one
year from the date of expiration of the period of placement of the child.
(10) A Children's Court may, on the application of a child, parent
or guardian, exempt the child from the application of subsection (8) if satisfied
that the case warrants such exemption.
Child in need of urgent protection
76. (1) A child is in need of urgent protection if there is reasonable
cmise to believe that -
(a) the child is hc.ing threatened or intimidated for purpos-
es of piosliliilion or for purposes of having sexual
inlCTCourst* w i t h iinothcr or for any immoral purpose;
(b) the child is being forced to marry;
(c) the child is pregnant and suicidal or rejected by the
family due to this condition;
(d) the child is subjected to hazardous conditions of
labour;
(e) the child is forced to undergo cultural or spiritual ritu-
als;
(f) the child is compelled to leave school;
(g) the child is confined or detained by another person in
contravention of this Part; or
(h) the well-being of and development of the child is in
eminent danger.
(2) A person or an affected child who is in need of urgent protec-
linu may, on his own, make an application to the Department of Social Welfare,
i-hicf or police officer for admission into a place of safety.
(3) The Department of Social Welfare shall satisfy itself that a
i-liild referred to in subsection (1) is in need of urgent protection, and if the cir-
I'tnnstances so warrant, admit the child.
(4) Where a person in charge of a place of safety receives any child
pursuant to this section, the child shall be attended to by the Department of
Nodal Welfare within forty-eight hours of admission and the Department of
.Social Welfare shall make an assessment and produce a full report of the cir-
i iimstunces.
(5) A child admitted pursuant to subsection (2) shall reside in a
place of safety for as long as the Department of Social Welfare is satisfied that
thi' child is in need of urgent protection.
 (6) Where -
I- (O knowing or having reason to believe that a child has been
Dl /

within or outside I ,esotho, and with intent to aid such purpose;

(a) a person receives a child pursuant to subsection (4); or

brought into Lesotho in the circumstances as set out in para-
(b) the Department of Social Welfare attends to a child and graph (c) or has been sold, let for hire, or hired or procured in
the circumstances as set out in paragraph (a), or in contraven-
makes an assessment and produces a report pursuant to
tion of any other written law, receives or harbours the child
subsection (4), the Department of Social Welfare shall
immediately inform a Children's Court of such admis- with intent that he is to be employed or used for purposes of
commercial sexual exploitation either within or outside
sion with a full report of the circumstances and in the
like manner, inform the Children's Court of the child's Lesotho;
departure.
detains or confines a child in a brothel or similar place;
Offences
detains or confines a child in any place with intent that the
child is to be employed in hazardous labour or used for purpos-
77. A person who -
es of commercial sexual exploitation or for any unlawful or
immoral purpose;
(a) sells, lets for hire or otherwise disposes of, or procures or hires
or otherwise obtains possession of, a child with intent that the
(10 by means of any advertisement or other notice published in any
child is to be employed or used for the purpose of commercial
manner or displayed in any place offers a child for purposes of
sexual exploitation, either within or outside Lesotho, or know-
commercial sexual exploitation or seeks information for that
ing or having reason to believe that the child will be so
purpose or accepts such advertisements or notice for publica-
employed or used;
tion or display;
(b) procures a child for purposes of commercial sexual exploita-
acts as an intermediary on behalf of a child or exercises control
tion or for purposes of having sexual intercourse with any other
or influence over the movements of the child in such a manner
person, either within or outside Lesotho;
as to show that the person is aiding or abetting or controlling
the commercial sexual exploitation of that child;
(c) by or under any false pretences, false representation, or fraud-
ulent or deceitful means made or used, either or within or out-
engages or hires a child to provide services for that person's
side Lesotho, brings or assists in bringing into, or takes out of
sexual gratification;
or assists in taking out of Lesotho, a child with intent that the
child is to be employed or used for the purposes of commercial
(k) attempts to do any act in contravention of this section,
sexual exploitation, either within or outside Lesotho, or know-
ing or having reason to believe that the child will be so
i i iits ;m offence and is liable on conviction to a fine not exceeding thirty
employed or used;
ioii',;m<l Maloti or to imprisonment for a period not exceeding two years and
U mouths or both.
(d) brings into Lesotho, receives or harbours a child knowing or
having reason to believe that the child has been procured for
purposes of commercial sexual exploitation or Tor (he purpos-
es of having sexual inle.ivourse with any other person, cither
518

Presumptions I'ART XI - CHILDRHN IN ( ' < >NI''L1CT WITH THE LAW, AGE OF
('RIMINAL RESPONSIBILITY AND AGE DETERMINATION
VS. Where a person -
Apr ol criminal responsibility and prosecution requirements
(a) causes a child to be employed or taken into a brothel or similar
-"> (I) No child below the age of ten years shall be prosecuted for a
place;
< 'nminal offence.
(b) receives a child into a brothel or harbours a child in a brothel
(2) No prosecution for a criminal offence may be instituted against
or similar place or obtains possession of the child;
u ( l i i k l between the ages of ten and fourteen until an inquiry magistrate is sat-
IH! ml (hat the child possesses the capacity to appreciate the difference between
(c) detains a child in any brothel or place, employs or uses a child
t i f h i and wrong and has the ability to act in accordance with that appreciation.
in hazardous labour for the purposes of commercial sexual
exploitation or for any unlawful or immoral purpose, and the
(3) An inquiry to establish whether a child appreciates the differ-
person -
rwv between right and wrong and is able to act in accordance with that appre-
diilinn shall be conducted by an inquiry magistrate.
(i) withholds from the child any wearing apparel or any
other property belonging to the child or any wearing
(4) It shall be presumed that a child between the ages of ten and
apparel commonly or last used by the child;
lmiiU-.cn lacks the capacity to appreciate the difference between right and
wioii}>, and cannot act in accordance with full appreciation, unless the Crown
(ii) threatens the child with legal proceedings, violence or
pinvrs beyond reasonable doubt that such child, as a matter of fact, has that
makes threats of harm or denial of food, if the child
uppiv.ciation and is able to act in accordance with the appreciation.
takes away any wearing apparel or any other property
which has been lent or hired out or supplied to the
(5) Evidence of the intellectual, emotional, psychological and
child;
Io.;, M K'ial development of a child is relevant to any enquiry into whether such child
v:.; ' l»o:;:;rsses the capacity to appreciate the difference between right and wrong
(iii) threatens the child, parent or guardian with legal pro-
dud has the ability to act in accordance with that appreciation,
ceedings for the recovery of any debt or alleged debt or
uses any other threat;
(6) Evidence referred to in subsection (5) shall be supported by a
i t |ioit from a person with expertise in child development or child psychology,
(iv) refuses or hinders access to the place by the child's par-
who shall testify before an inquiry magistrate in person as to the content and
ent, guardian or social workers; or
I u n l i n k s of the report.
(v) without any lawful authority detains the child's identi-
(7) Evidence referred to in subsection (5) may be challenged by
ty card or passport issued under the law relating to
.in y prison present at the inquiry, and any evidence in rebuttal may be adduced.
national registration,

it may be considered as evidence of the fact that the person intended to com-
mit offences referred to in section 77.
Purposes of assessment of age (0 a MK'ilicnl n l l i m ; and

(g) any person whose presence is necessary or desirable

HO. (1) The purposes of assessment of age are to -
for the completion of the assessment process.
(a) establish the probable age of a child;
I » n l U N of police officer in relation to age assessment
(b) establish the prospects of a child being able to be .
HI If a police officer is uncertain about the exact age of a person suspect-
diverted by a probation officer;
1 1 1 < 11 I inving committed an offence, but has reason to believe that the age of the
IH I'ion would render that person subject to protection under this Act, he shall
(c) establish the prospects for diversion by a prosecutor or
i.ikr such person to a probation officer for assessment of age within the pre-
inquiry magistrate;
M i i l u - d period or, if a probation officer is not readily available, to a medical
(d) provide information to support recommendations to a
prosecutor and an inquiry magistrate regarding release
"HV|)i that where a police officer has reasonable grounds to believe that a
of a child into the care of a parent or guardian or place-
hild is below the minimum age of prosecution as described under section 79,
ment in a place of safety;
.-.hall not arrest the child.
(e) in the case of children below the minimum age of pros-
nr assessment by probation officer
ecution, to establish what measures, if any, need to be
taken.
' (1) The probation officer referred to in section 87 shall receive,
liiain or request any evidence relevant to assessment into the age of a child or
(2) An assessment shall be effected by a probation officer and may
dike place at a magistrate's court, the offices of the Department of Social
Welfare, a private house, a police station or any other suitable place identified
(2) Upon receipt of information referred to in this subsection (1), a
by the probation officer concerned.
|inili;ition officer shall make an assessment in respect of the age of a person
Immj'.hi before him and shall for this purpose, consider the evidence received
(3) No person other than the following is entitled to attend assess-
in (he following order:
ment of a child as referred to in this section -
(a) a valid birth certificate, identity document or passport;
(a) the child in respect of whom the assessment is conduct-
ed;
(b) any other form of registration of birth, identity or age
acknowledged by the office of the District
(b) the child's parent or guardian;
Administrator;
(c) the prosecutor in whose district the assessment is being
(c) a statement from a parent, guardian or person likely to
conducted;
have knowledge of the age of a child or a statement
made by the child or person who alleges that he is the
(d) a legal representative;
child;
(e) the police officer responsible for arrcslinj', llu- child;
5?:;,
(d) an estimation of age made by a medical practitioner;
(e) a previous determination of age by a magistrate under
this Act;
(f) secondary documentary evidence, such as a hospital
birth record, baptismal certificate, school registration
forms, school reports, or other evidence of a similar
nature if relevant to establishing a probable age.
(3) A probation officer shall make an assessment as to the proba-
ble age of a child or person concerned.
(4) Where a probation officer, after making an assessment, con-
cludes that a child or person referred to him by a police officer in terms of sec-
tion 81 is over the age of eighteen years or is below the minimum age of pros-
ecution as referred to under section 79, such child or person shall not be sub-
jected to the provisions of this Act:
Provided that the conclusions of the probation officer will not remain valid
after evidence to the contrary before an inquiry magistrate.
(5) Where a probation officer concludes that a child is, by virtue of
his age, subject to the provisions of this Act, he shall proceed with the assess-
ment of the child, and the age assessment can form the basis of -
(a) the decisions of the probation officer made pursuant to
J(V. section 88; and
(b) the recommendations of the probation officer made
pursuant to section 91.
(6) Where a probation officer is uncertain as to the probable age of
a child or person, or where the age of the child or person is in dispute, the pro-
bation officer shall cause the child or person to be taken to a medical officer
lor assessment of age unless the child or person has already been taken to the
medical officer by a police officer under section 81, in which case the provi-
sions of section 87 shall apply.
323
Age estimation by nit'iliml officer
S3. (1) A police officer or probation officer may refer a child to a med-
ical officer for an estimation of the age of the child.
(2) Where a medical officer concludes that a child or person
referred to him for estimation of age is -
(a) over the age of eighteen years, the person is deemed to
be an adult and is not subject to the provisions of this
Act, or
(b) below the minimum age of prosecution as referred to
under section 79, the child shall be referred back to the
probation officer for further attention in terms of sec-
tion 89; or
(c) over the minimum age of prosecution as referred to
under section 83 and under the age of eighteen years,
that child shall be referred back to a probation officer
concerned, together with the record of the estimation of
age for further procedures under this Act.
(3) Where a medical officer concludes that he is unable to make
m-.curate assessment of a person's age and it is not clear as to whether the per-
son is subject to the provisions of this Act, he shall refer such person back to a
probation officer concerned for the purposes of determination of age by an
iiujiiiry magistrate.
A^e determination to be effected at preliminary inquiry
K-l. (1) A probation officer to whom a child has been referred by a
medical officer under section 83 (3), shall cause the child or person to appear
In-fore an inquiry magistrate for purposes of the determination of the age of
thai child or person and shall place such inquiry magistrate in possession of a
lompleted age assessment together with relevant documentation referred to
under section 83(1).
(2) The inquiry ma^,islrate shall, on the available evidence and
w i l h due regard to I he provisions of section 83 (2), make a determination as to
.Y,VI
the age of a child or person which shall be entered into the record as the age of
the child, and shall be considered to be the correct age until such Lime as any
contrary evidence is placed before the court in which the inquiry magistrate
presides or any other court.
(3) For the purposes of the determination referred to under subsec-
tion (2), the inquiry magistrate may require any documentation, evidence or
statements relevant to age determination from any person, body or institution
to be placed before him.
(4) If an inquiry magistrate determines that a person is over the age
of eighteen years, he shall close the preliminary inquiry and direct that the mat-
ter be transferred to a court other than a Children's Court for criminal proceed-
ings.
(5) Where an inquiry magistrate makes a determination under sub-
section (2), he shall cause a record of the determination to be forwarded to the
office of the Minister responsible for home affairs for the purposes of issuing
relevant identification documents.
(6) Where necessary, an inquiry magistrate may cause a subpoena
to be served on any person to produce the documentation, evidence or state-
ments referred to under subsection (3).
AKC assessment and determination by officer presiding in criminal court
K5. (1) Where a person appearing in a criminal court other than a pre-
liminary inquiry or a Children's Court alleges that he is below the age of eight-
een years at any stage in a criminal trial before sentence, or where it appears to
such court that the person may be below the age of eighteen years, the officer
presiding in that court may conduct an inquiry as to the age in accordance with
the provisions of section 83 (2) and (3).
(2) If the age of a person referred to under subsection (1) is found
to be below eighteen years and the trial has not yet commenced, the presiding
officer concerned shall transfer the matter to an inquiry magistrate for further
proceedings under this Act.
(3) If the age of the person referred to under subsection (1) is
found lo be below the age of eighteen years and the trial has comim-nced, the
S'AS
n-dings shall continue to be conducted before the presiding officer con-
ril, but the remainder of the proceedings shall be conducted under the pro-
\ - n i i i : ; of (his Act.
(4) A presiding officer concluding a trial under subsection (3) may,
• i l l ' i «mviction, deal with the matter in a manner similar to which a Children's
i M i n t would do.
I'm* ui or guardian to attend assessment
n<> (I) A parent or guardian who has been issued with a written notice
MI .1 Mimmon to appear at an assessment of a child shall attend the assessment
unli-f;:, exempted from the obligation to do so under subsection (3).
(2) If a person referred to under subsection (1) has not been noti-
III <l lo attend an assessment, a probation officer may at any time before the
H*M",Miient direct a police officer to issue a written notice to the person to
n|»l» .11 at an assessment
(3) A person who has been notified under subsection (1) or (2) may
•H'l'ly lo (he probation officer concerned for exemption from the obligation to
•nit nd the assessment in question, and if the probation officer exempts such
IH i .mi, he shall do so in writing.
(4) A person who has been notified under subsection (1) or (2) and
w i n . lias not been exempted from the obligation to attend an assessment under
ititiiuviinn (3) and fails to attend the assessment in question, commits an
H i l l - i n <• and is liable on conviction to a community service.
Ihitlrs ol' probation officer in relation to social assessment
M/ (I) A probation officer shall assess all children -
(a) who have been arrested and who remain in detention in
police custody within 48 hours of such arrest subject
to the provision under section 89(l)(a).
(b) who have been arrested and released from detention in
policr custody under section 104, after 48 hours, calcu-
lalrtl I I D I M the time of the arrest;

(c) in respect of whom an alternative inrlluul ol* securing
attendance at an assessment has been dTeclcd within
72 hours.
(2) A probation officer shall make every effort to locate a parent or
a guardian for the purposes of concluding an assessment process of a child:
(6) A probation officer shall obtain evidence relevant to the age
lusrssmc.iit referred to under section 82.
(7) Unless a child is below the minimum age of prosecution as
I- i< i i r d lo in section 79, the probation officer shall make a report with the fol-
InwiMj', recommendations -

Except that where all reasonable efforts to locate such person or persons have (a) the prospects of diversion;
failed, the probation officer may conclude the assessment in the absence of
(b) the possible release of the child into the care of a par-
such person or persons.
ent or guardian; or
(3) A probation officer shall explain to a child in a language that
(c) the placement^ where applicable, of the child in a place
the child understands -
of safety.
(a) the purposes of an assessment; and
(8) Transfer or conversion of a matter to a Children's Court shall
(b) that the child has the right to - |ir considered by a probation officer.

(9) If a probation officer recommends that the matter be trans-

(i) contradict or challenge any information against
It i i t - i l lo a Children's Court the report shall reflect his recommendations and
him;
K'.i'.uns as well as recommendations as to the temporary placement of a child
(ii) remain silent; |M'inlinj', the opening of the Children's Court inquiry.

(10) A report made pursuant to subsection (7) shall be submitted to

(iii) have the parent or guardian contacted;
it |in»,siicutor for the opening of the preliminary inquiry.
(iv) have a person referred to under paragraph (iii)
IWn-s of probation officer to obtain relevant evidence or secure atten-
or a legal representative present during the not-
ing by a police officer or a magistrate of a con- 'c of relevant persons
fession, admission, pointing out or during an
MH A probation officer may, by issuing a notice, require an arresting offi-
identification parade;
i i t ni any other police officer to -
(v) choose and to be represented by a legal practi-
(a) bring a child forthwith from police custody for assessment;
tioner at the child's own cost.
(I)) obtain documentation relevant to prove a child's age from a
(4) A probation officer shall interview a child, the child's parents
or guardian in order to effect the necessary assessment. specified place or person; or

(c) notify u parent or guardian to appear at an assessment.

(5) A probation officer may contact or consult with any other per-
son who has any information relevant to an assessment of a child.
V.'K

Powers of probation officer in relation to children below (he minimum age

of prosecution
p (c) specify persons who or organisations which shall pro-
vide such services and assistance;

(d) state the responsibilities of a child and a parent or

N°. (1) After assessment under section 80(l)(a) and (d) of a child
guardian of such a child;
below the minimum age of prosecution, a probation officer may -
(e) state personal objectives of a child and of parent or
(a) refer the child or the family of the child for counselling
guardian of such child; and
or therapeutic intervention;
(f) contain such other matters relating to the education,
(b) arrange the provision of support services to the child
employment, recreation and welfare of a child as are
or family of the child;
relevant.
(c) arrange a conference, which shall be attended by the
(4) A probation officer shall record the outcome of the assessment
child, parents or an appropriate adult, and which may
M i n i ilu- decision made or given under subsection (1), as well as the reasons for
be attended by any other person likely to be able to pro-
«IH li decision or order.
vide information material for the purposes of the con-
ference; or
Towers of probation officer in respect of children above the minimum age
ill prosecution alleged to have committed offences referred to in schedule
(d) decide to take no action.

(2) The purpose of the conference convened by a probation officer

'>(> (I) After an assessment under section 80(l)(a), (b), (d) and (e) of
under subsection (l)(c) is to assist such probation officer to -
t i » l u M of ten years or above as referred to under section 80, a probation offi-
1 1 1 concerned may, where the child is alleged to have committed an offence
(a) establish fully the circumstances surrounding the alle-
U'ln n'd to in schedule 1 -
gations against the child;
(a) refer the child to a Children's Court for appropriate
(b) formulate a written plan appropriate to the child and
action;
relevant to the circumstances; or
(b) take no further action; or
(c) make an order in terms of this section.
(c) if the child acknowledges responsibility for the alleged
(3) The written plan under subsection (2)(b) shall -
offence, refer the child to a diversion option referred to
under section 129(2) or (3), where there are no factors
(a) specify the objectives to be achieved for a child and
mitigating against such decision.
the period within which those objectives are to be
achieved;
(2) A probation order taken by a probation officer under subsection
1 1 ) nniy ho effected.
(b) contain details of the service and assistance to be pro-
vided for a child and for any parent or gunrdian;
 53

(3) A probation officer concerned shall nvord any decision taken (f) an appropriate placement, including placement in the
under subsection (1), as well as the reasons for sucti decision. care of a fit and proper person; or

(4) If a probation officer does not make a decision under subsec- (g) detention in a secure care facility or prison with due
tion (1), he may recommend that the matter be referred to a prosecutor for the regard to the circumstances referred to under section
opening of the preliminary inquiry, in which case the probation officer shall 116.
make an age assessment and produce an assessment report.
PART XI - POLICE POWERS AND DUTIES
Powers of probation officer in respect of children above the age of prose-
cution alleged to have committed offences referred to in Schedule II Mi and purpose of arrest

91. (1) After an assessment under section 80(l)(a), (c), (d) and (e) of a '' ' ( 1) An arrest, for purposes of this Act, may be made by a police
child of ten years of age or above as referred to under section 79, a probation t ' l i n IT with or without warrant unless a child to be arrested submits to cus-
officer concerned shall, where the child is alleged to have committed an tody
offence referred to in Schedule II, make an age assessment report which,
together with supporting information, shall be submitted to a prosecutor for the (2) The purpose of arrest under this Act is to bring a child before a
opening of the preliminary inquiry. jMrlnninury inquiry or for assessment under section 87.

(2) If it appears to a probation officer that a child concerned does (3) An arrest shall be made with due regard to the dignity and well-
not intend to accept responsibility for the alleged offence, that fact shall be linnj 1 , of a child.
indicated in the assessment report referred to under subsection (1).
(4) Subject to subsection (6), if it is clear that a child cannot be
(3) After an assessment referred to under subsection (1), a proba- H I M '.led without the use of minimum force, the police officer arresting the
lion officer may recommend - i Inlil may use such force as may be reasonably necessary and proportional in
ilt« • iH'innstances, to overcome any resistance.
(a) the diversion of a child to a specified process, pro-
gramme or appropriate alternative order mentioned (5) Where the use of minimum force is placed in dispute in civil
under section 129; in, iiii-is, the onus of proving that the minimum force was used rests on theper-
ftnn M» alleging,
(b) that no further action be taken in respect of the alleged
offence; (6) A police officer arresting or attempting to arrest a child under
iln . Mviion is not justified in using deadly force that is intended or is likely to
(c) that the matter be transferred to a Children's Court for • 'in .1 death or serious bodily harm to such child, except if he believes, on rea-
appropriate action; grounds -

(d) that the matter not be diverted and be referred to a pros- (a) that the force is immediately necessary for the purpos-
ecutor; es of protecting himself, any person lawfully assisting
him or any other person from eminent death or serious
(e) that a child be released to a parent or guardian, or on bodily harm;
his own recognisance;
 532
I—
(b) that there is a substantial risk (hiil Ihe suspect will cause Alternatives to arrest
eminent death or serious bodily harm if Ihc arrest is
delayed; or 'H (I) Alternatives to arrest shall include the following;

(a) requesting a child in a language that the child under-

(c) that the offence for which the arrest is sought is in
stands to accompany the police officer to the place
progress and is of a forcible and serious nature and
where assessment can be effected;
involves the use of life-threatening violence or a strong
likelihood that it will cause serious bodily harm.
(b) written notification to a child and, if available, the par-
ents, guardian or family of the child to appear for
Towers of arrest and arrest by police officer without warrant
assessment on a specified date and at a specified place
93. (1) A police officer may, subject to subsections (2) and (3), with- and time;
out warrant, arrest a child -
(c) granting of a written recognisance by a police officer at
the place of arrest, informing a child to appear at an
(a) who commits or attempts to commit any offence in his
assessment on a specified date and at a specified place
presence;
and time:
(b) whom he reasonably suspects of having committed an
I'tcwided that the police officer shall, as soon as is reasonably possible, inform
offence, including the offence of escaping from lawful
custody; Ihe probation officer of the granting of such recognisance;

(d) accompanying a child to his home, where a written

(c) who willfully obstructs him in the execution of his
notice referred to in paragraph (b) can be given to the
duty;
child and parents, guardian or family; and
(d) who is reasonably suspected of having failed to
(e) opening a docket for the purposes of consideration by
observe any condition imposed in the passing of sen-
the Director of Public Prosecutions as to whether the
tence or in postponing or suspending the operation of matter should be set down for the holding of a prelim-
any sentence under this Act.
inary inquiry or whether a child should be charged.
(2) A police officer may arrest a child referred to in subsection (1)
(2) Subject to the provisions of subsection (1), a child may be sum-
whose age is above the minimum age of prosecution referred to in section 79
moned to appear for assessment at a place and time and on a date specified in
but below the age of eighteen years for the purposes of bringing the child for
assessment by a probation officer as referred to under section 82. ilu- summons, upon application by a prosecutor the clerk of a Children's Court.

(3) Where an alternative to arrest as referred to under subsection (1)

(3) In deciding whether to effect an arrest, a police officer is
In:; been employed, a child shall be required to appear for assessment within
obliged to consider whether an alternative method of securing the appearance
/.' hours of such alternative being employed, or in the case of the issuing of a
of a child at an assessment as referred to under section 94 can be used, or
whether an informal caution referred to in section 100 (1) can be used. summons, within 72 hours of Ihe summons being served on the child.
534
' 533
Arrest by private person without warrant
°5. (1) A private person may, without warrant, arrest a child whom he
reasonably believes to be ten years of age and above as referred to under sec-
tion 79, and below the age of eighteen years -
(a) who commits or attempts to commit in his presence or
whom he reasonably suspects of having committed an
offence;
(b) whom he reasonably believes to have committed any
offence and to be escaping from and being freshly pur-
sued by a person whom such private person reasonably
believes to have authority to arrest the child;
(c) whom he is by any law authorised to arrest without
warrant in respect of any offence specified in that law.
(2) Minimum force, where necessary, shall be used in effecting an
arrest under this section.
(3) The provisions of section 92 relating to the use of force and
deadly force, shall with the necessary changes in points of detail required by
(he context, apply to this section.
(4) A private person who has effected an arrest as referred to in this
section shall hand over a child to a chief, police or probation officer as soon as
possible.
Issue of warrant of arrest
%. (1) An inquiry magistrate or presiding officer in a Children's Court
may issue a warrant for the arrest of any child presumed to be below the age
of eighteen years and above the minimum age of prosecution as referred to in
section 79 upon the written application of the Director of Public Prosecutions
or a police officer which -
(a) sets out the offence alleged to have been committed;
(b) allcjys lhal ;aich offence was committed within the
area of jurisdiction of such a magistrate or where such
offence was not committed within such area of juris-
diction, which alleges that the child in respect of whom
the application is made, is known or is on reasonable
grounds suspected to be within such area of jurisdic-
tion; and
(c) states that from information taken upon oath, there is a
reasonable suspicion that the child in respect of whom
the warrant is applied has committed the alleged
offence.
(2) A warrant of arrest issued under this section shall direct that a
person described in that warrant be arrested by a police officer in respect of the
offence set out in the warrant and that he shall be brought before a probation
officer for assessment as referred to under section 88.
(3) A warrant of arrest may be issued on any day and shall remain
in force until it is cancelled by a presiding officer who issued it or, if the pre-
siding officer is not available, by any person with like authority, or until it is
executed.
(4) A warrant of arrest may be suspended by any inquiry magis-
trate or presiding officer in a Children's Court, and the officer required to exe-
cute such warrant, may, instead of arresting a child, employ one of the alterna-
tives to arrest as referred to under section 94
Duties of police officer upon arrest with or without warrant
()1. (1) Where an arrest of a child above the minimum age of prosecu-
lion has taken place, a police officer shall -
(a) if the child is in detention in police custody, bring the
child to a probation officer for assessment, but not later
than 48 hours after arrest;
(b) inform the child, in a language that the child under-
stands of Ihr allegation against him; and

(c) inform the child in a language thiil the child under-
stands, of the following rights
(i) the right to remain silent; and
(ii) the right to ask that his parent, guardian, chief
or any appropriate adult be contacted.
(2) A police officer shall, upon confession, admission, pointing out
or identification parade by a child, ensure -
(a) the presence of a legal representative of the child's own
choice and at the child's own cost;
(b) the presence of the child's parent or guardian;
(c) a chief of the area where a child resides; or
(d) any other appropriate adult.
(3) Where an alternative to arrest as referred to in section 94 has
been used, a police officer shall explain the rights set out in paragraph (c) of
subsection (1) to a child.
(4) Where an arrest has been effected, an arresting officer shall
provide an inquiry magistrate with a written report within 48 hours, giving rea-
sons why alternatives to arrest as referred to under section 94 could not be
employed.
Duty of police officer to inform probation officer
98. (1) A police officer shall inform a probation officer in whose area
of jurisdiction the arrest of a person under the age of eighteen years has taken
place, of such arrest within twelve hours.
(2) If an alternative method of securing the attendance of a child
for an assessment as referred to under section 94 has been used, a probation
officer concerned shall inform a police officer in whose area and assessment
will take place as soon as possible and not later than 72 hours after the proce-
dures referred to under section 94 have been effected.
537
Duty of police officer to notify parents, guardian or family member
*)*>. (1) Where a child has been arrested, a police officer who has
arrested the child, shall notify the child's parents, guardian or a family mem-
ber of the arrest, and give the relevant person or persons a written notice requir-
ing such person to attend an assessment at a specified time, place and on a
specified date.
(2) If one of the persons referred to in subsection (1) is not avail-
able, or cannot be traced, a police officer shall request a child to identify anoth-
r,r appropriate adult, and if such adult is identified, the police officer shall
request that person to attend an assessment at a specified time and place and
on a specified date.
(3) Where an alternative method to arrest as referred to under sec-
lion 94 has been effected, the person employing such alternative shall, as soon
as possible thereafter, notify the child's parent, guardian or a member of the
family of the use of the procedure referred to in section 94, and give the rele-
vant person notice requiring the person to attend an assessment at a specified
time, place and on a specified date.
(4) If one of the persons referred to under subsection (3) is not
available, or cannot be traced, a person employing an alternative method to
arrest shall request a child to identify another appropriate adult, and if such
adult is identified, a police officer shall request the person to attend an assess-
ment at a specified time and place and on a specified date.
Duties of police upon request
100. An arresting officer or another police officer may be required by a
probation officer, as a matter of urgency, to -
(a) notify a specific person of the appearance of a child under the
age of eighteen years at an assessment;
(b) give the relevant person a written notice to attend an assess-
ment at a specified time and place and on a specified date;
(c) obtain documents relevant to proof of age from a specified
address or plare; or
 339

Pre-trial procedures and presence of parent or guardian

(d) transport a specified person or persons to the place where an
assessment is to be effected.
102. (1) No confession, admission or pointing out by a child may be
admitted as evidence in a Children's Court, where such confession, admission
Cautioning by police or pointing out was made to a police officer or inquiry magistrate unless a legal
representative, parent or guardian of the child was present at the time of the
101. (1) A police officer may apply an informal caution instead of
confession, admission or pointing out by the child.
arresting a child.
(2) No evidence obtained at an identification parade may be admit-
(2) A formal caution, where recommended by a probation officer,
li i d as evidence in a Children's Court unless a legal representative, parent or
prosecutor or an inquiry magistrate, may be administered by a police officer to
guardian was present at the time of such procedure.
a child in the presence of the parent or guardian and victim of the child's
unlawful conduct. (3) Fingerprinting of children shall be regarded as a measure
which should not be resorted to before the finalisation of a preliminary inqiih y:
(3) A formal caution shall be administered in private, whether in a
police station or elsewhere, in the presence of a probation officer, if available,
Provided that the fingerprints of a child may be taken during the period ahn
and the persons mentioned in subsection (2). ;n rest and before appearance of the child before the preliminary inquiry if
(4) A police officer referred to in subsection (2) shall cause a
(a) it is essential for the investigation of the case;
record of the caution to be kept at the applicable police station and shall for-
ward a record to the Commissioner of Police who shall cause a register of cau-
(b) it is required for the purposes of establishing the ago of
lions to be kept. the person in question; or
(5) A record of a formal caution referred to in subsection (4) shall
(c) it is necessary to establish the prior convictions of the
IK- expunged after a period of two years from the date of which the caution was
child for the purposes of making a decision on diver-
administered. sion, release from detention in police custody or place-
ment in a particular place of safety.
(6) A register kept in terms of subsection (4) may be made avail-
able to - I V< ration in police custody before appearance at assessment
(a) any member of the police;
KM. (1) Detention of a child in police custody, whether in a police cell,
police vehicle, lock-up or other place shall be used as a measure of last resort
(b) any probation officer; and for the shortest possible period of time.
(c) any inquiry magistrate; (2) A station commander of a police station shall cause a separate
irj'.ister to be kept, in which details regarding the detention in police cells of all
(d) Director of Public Prosecutions; or
prisons under the age of eighteen years shall be recorded.
(e) any person for lawful research purposes with the per-
mission of the Commissioner of Police.
 Ml

(3) A register referred to in subsection (2) may In- examined by a where no alternative action can be taken.
parent, guardian, legal representative, prosecutor, ma^isliale, social worker,
probation officer, health worker or any other person authorised by the station (7) No police officer may admit or allow a child to remain in
commander to examine the register. detention in the police custody after the expiry of the periods of time set out in
subsections (5) and (6), and the police officer admitting or allowing the child
(4) While in detention in police custody, a child shall - to remain in police custody longer than the said periods of time, commits an
offence and is liable on conviction to a fine not exceeding one thousand mal-
(a) be held in conditions and treated in a manner that takes oti or to imprisonment for a period not exceeding one month or both.
account of his age;
(8) Where a child in police custody makes a complaint regarding
(b) be held separately from adults, and boys shall be hdd injury sustained by the child during arrest or while in detention, a police offi-
separately from girls; cer to whom the complaint is made shall report the complaint to the station
commander who shall, within a reasonable time, cause the child to be taken to
(c) be held, as far as possible, in conditions which will the medical officer for examination and treatment and attach the report of the
minimise the risk of harm to that child, including the j medical officer to the police docket relating to the child concerned.
risk of harm from other children; J
(9) A police officer or station commander who fails to comply with
(d) have the right - ^ the provisions of subsection (8) commits an offence and is liable on conviction
to a fine not exceeding one thousand maloti or to imprisonment for a period not
(i) to adequate food; exceeding one month or both.

(ii) to medical treatment or services when required; (10) A police officer shall not have an unlawful physical contact
with a child in detention.
„.. (iii) of access to reasonable visits by parents,
guardians, legal representatives, registered (11) A child in detention shall not be searched by a police officer of
social workers, probation officers, health work- a different sex.
ers and religious counsellors;
(12) A police officer who contravenes the provisions of subsection
(iv) of access to reading material; (10) and (11) commits an offence and is liable on conviction to a fine not
exceeding one thousand maloti or to imprisonment for a period not exceeding
[,. (v) to adequate exercise; and one month or both.
Mu,::-.
(vi) of access to adequate clothing, including suffi- Powers of police to release a child from detention before preliminary
cient blankets and bedding. inquiry

, :, (5) No child may be held in detention in police custody for longer
than forty-eight hours prior to appearing before an inquiry magistrate.
(6) A child may only be remanded to detention in police custody
for a period of 48 hours and for one further period of a m a x i m u m of 4K hours
104. (1) In respect of a child accused of offences listed in schedules I
and II consideration shall be given to the release of such child from detention
in police custody pcmliii}* a preliminary inquiry.

(2) A child shall, unless there are suhslanlial HMSOIIS not to do so,
he released from detention in police custody by a police officer on own recog-
nisances, or into the care of a parent or guardian on one or more conditions as
set out under subsection (4).
(3) Where a child is alleged to have committed an offence in
respect of which the court has no jurisdiction, the child may be released from
police custody by a police officer in consultation with the Director of Public
Prosecutions on one or more conditions as set out under subsection (4).
(4) Conditions of release of a child for the purposes of this section
include the following:
(a) the obligation to appear at a specified time and place
for assessment not later than 48 hours after the arrest;
(b) the obligation to report periodically to a specified per-
son or at a specified place;
(c) the prohibition not to interfere with witnesses, to tamp-
er with evidence or to associate with a person, persons
or group of specified people; and
(d) the obligation that the child has to return to his home or
to a specified address.
(5) Where a child has not been released from detention in police
custody prior to the holding of a preliminary inquiry, the arresting officer shall
provide the relevant inquiry magistrate with a written report giving reasons
why such child could not be released from detention in police custody.
(6) The Commissioner of Police shall provide -
(a) transport costs or transport assistance in respect of a
child who is released from police custody on own
recognisances; and
(b) recovery of transport costs from a child to whom such
costs had been provided if it appears thai the, child or
his family is able to pay for such cosls.
543
(laid not charged until matter entered on roll of Children's Court
105. For the purposes of proceedings under this Act, a child shall not be
charged until -
(a) after the fmalisation of the preliminary inquiry;
(b) the prosecutor enters the matter on the roll of a Children's
Court under the provisions of this Act; and
(c) formally puts the charges to the child.
PART XII - PRELIMINARY INQUIRY
Nature and purposes of preliminary inquiry
106. (1) For the purposes of this Act and any other Act, the preliminai y
inquiry proceedings shall be regarded as the proceedings of a Children's ('out I ,
(2) The place where a child shall appear for purposes of the hold
ing of a preliminary inquiry shall be determined and be presided over by an
inquiry magistrate.
(3) The purposes of a preliminary inquiry are to enable an inquiry
magistrate to -
(a) ascertain whether an assessment of a child has been
effected by a probation officer, and if not, whether
compelling reasons exist as to why the assessment can
be dispensed with;
(b) order that an assessment be effected, if it has not yet
been done;
(c) establish whether the matter can be diverted before
charges are instituted in a Children's Court or any
other court under the provisions of this Act;
(d) refer Ilie matter to a prosecutor for charges to be insti-
tuted in a < 'hildren's Court where a child does not
 .S4.S

admit responsibility for the alleged olli'iice or where (a) the right to challenge evidence and the right to adduce
diversion of the matter is not possible; evidence;

(e) transfer the matter to a Children's Court; (b) the right to remain silent;

(0 assess whether there is sufficient evidence to warrant a (c) the right to have the child's parents or guardian present
prosecution; and at the preliminary inquiry;

(g) determine release or placement of a child pending - (d) the right to choose and to be represented by a legal
practitioner at his own cost.
(i) the finalisation of the preliminary inquiry;
(4) No person other than the following are entitled to attend a pre-
(ii) referral to a Children's Court; or liniinary inquiry -

(iii) transfer to a Children's Court. (a) a child and the parents or guardian;

Procedure in preliminary inquiry (b) a prosecutor; *

;j

107. (1) A preliminary inquiry shall be held - (c) a probation officer; *'

(a) if a child has been arrested pursuant to section 92, with- (d) an arresting officer or other police officer;
in 48 hours of such arrest; and
(e) a child's legal representative; and '
(b) if an alternative to arrest as referred to under section 94
has been effected, within 72 hours of such alternative 1 (f) any other person served with a subpoena, requested or
having been employed. permitted to attend the preliminary inquiry as referred
i to in section 109(l)(a) or (b).
(2) At a commencement of a preliminary inquiry, a prosecutor
shall ensure that the inquiry magistrate is in possession of - (5) A preliminary inquiry may not be held in the absence of a child
concerned.
(a) the age assessment report, save where assessment has
not been effected; and (6) A preliminary inquiry may be held in a room, office, chamber,
closed court but may not be held in an open court.
(b) any further supporting documentation that the prosecu-
tor deems relevant to the preliminary inquiry or that is (7) Proceedings of a preliminary inquiry shall be conducted in an
required under this Act. informal manner, and the inquiry magistrate is responsible for conducting the
proceedings, asking the necessary questions, interviewing any person or per-
(3) At the commencement of a preliminary inquiry, the inquiry sons attending the inquiry and eliciting any information that is required.
magistrate shall inform the child in a language that the child umlrrslamls of the
following, rights -

(8) Evidence of a previous diversion or previous charge proved
may be elicited or adduced at a preliminary inquiry by any person.
(9) An inquiry magistrate shall keep a record of the proceedings of
a preliminary inquiry or cause such a record to be kept.
(10) A decision of an inquiry magistrate presiding at a preliminary
inquiry is not subject to appeal, save for a decision to remand a child in cus-
tody referred to in section 115.
Separation and joinder of preliminary inquiry
108. (1) If a child in respect of whom the holding of a preliminary
inquiry is contemplated is co-accused of an alleged offence with an adult, the
case of the adult concerned may with the directive of the Director of Public
Prosecutions be separated from that of the child and will not be subject to the
provisions of this Act.
(2) If the child in respect of whom the holding of a preliminary
inquiry is contemplated is co-accused with one or more other children, a joint
preliminary inquiry may be held in respect of all children concerned, provided
that the inquiry proceedings may be separated at any time where this is in the
best interests of any of the children.
General powers and duties of inquiry magistrate
109. (1) An inquiry magistrate may -
(a) cause a subpoena to be served on any person whose
presence is necessary for the finalisation of a prelimi-
nary inquiry;
(b) request or permit the attendance of any person, who, in
his opinion can contribute to the proceedings of a pre-
liminary inquiry;
(c) request the production of any further documentation or
may elicit any further information to supplement that
referred to under section 107(2), which is relevant or
necessary to the proceedings;
547
(d) make a determination of age referred to in section 85;
(e) after consideration of the information contained in the
assessment report, elicit any information from the per-
sons attending an inquiry to supplement or clarify the
information contained in the assessment report, and
which is necessary in order to enable him to make the
decision referred to under section 110(4); and
(f) take such steps as he deems necessary to establish the
truth of any statement or submission that may be in dis-
pute.
(2) Where a social assessment has not been effected, an inquiry
magistrate shall instruct a prosecutor to refer a child to a probation officer in
order for an assessment to be effected:
Provided that the inquiry magistrate shall decide that assessment may be dis-
pensed with if compelling reasons for doing so exist, and if it is in the best
interests of the child.
(3) An inquiry magistrate shall apprise himself of diversion pro-
grammes available as well as their aims and content.
Decisions of inquiry magistrate and factors to be considered
110. (1) In regard to all matters brought before a preliminary inquiry, an
inquiry magistrate shall, before referring the matter to a prosecutor for the
institution of charges in a Children's Court under subsection (4)(b), satisfy
himself that diversion of the matter is not possible.
(2) In order to establish whether or not diversion is possible, an
inquiry magistrate shall have regard to -
(a) an assessment report, unless the assessment of a child
has been dispensed with under section 109(2);
(b) the views of any person present at the preliminary
inquiry;
5-1S
(c) any further information provided hy iiny person present
at the preliminary inquiry; and
(d) any further information requested by him in the cause
of conducting the preliminary inquiry.
(3) In taking a decision under subsection (4), an inquiry magistrate
shall take account of the principle that a child has the right to participate in all
decisions affecting him:
Provided that where a child does not acknowledge the responsibility of the
offence, the child shall not be required to answer any question which may
infringe upon his rights to be presumed innocent and to remain silent.
(4) If after consideration of a social assessment report and submis-
sions by a prosecutor, the assessment has not been dispensed with under sec-
tion 109(2), a child, any other party to the inquiry or an inquiry magistrate may -
(a) divert the matter in accordance with the standards and
requirements set out in section 127 and section 128 and
in terms of any of the options set out in section 129; or
(b) refer the matter to a prosecutor for charges to be insti-
tuted in a Children's Court or any other court acting
under the provisions of this Act.
(5) After an inquiry magistrate has made a decision to divert the
i nutter in terms of subsection (4) (a), and if formal programmes for diversion
are not available, or are not appropriate to the circumstances of a child, his
family or the alleged offence, the inquiry magistrate shall, as far as is possible,
develop a diversion strategy which meets the standard and requirements of
diversion set out under sections 127 and 128 and which is appropriate to the
circumstances of a particular child, his family, community of origin and the
alleged offence.
(6) An inquiry magistrate shall -
(a) if he has taken a decision that the mailer should be
referred to a Children's Court in terms of suhsection (4)
(b), record written reasons for sudi division; and
549
(b) receive and consider the reports regarding arrest of a
child and detention in police custody provided by an
arresting police officer in sections 97(3) and 104(5)
respectively, and if, in the opinion of the inquiry mag-
istrate, an arrest or detention in a police cell, as the case
may be, was necessary, he shall forward a copy of the
record referred to in those sections to the parent,
guardian or legal representative of the child.
Sufficiency of evidence in a preliminary inquiry
111. (1) An inquiry magistrate who intends to refer the matter to a pros-
ecutor for charges to be instituted in a Children's Court or other court in terms
of section 110(4)(b), shall satisfy himself that there is sufficient evidence to
sustain the prosecution, and for this purpose he may request the prosecutor,
investigating officer or any other relevant person to provide an oral report con-
cerning the sufficiency of such evidence.
(2) If an inquiry magistrate has substantial and compelling reasons
lo believe that there is insufficient evidence to support the institution of
charges against a child, he shall close a preliminary inquiry and -
(a) order that the child, if in detention, be released; or
(b) order that the child be released with an order for appro-
priate intervention by a probation officer.
(3) If at any stage of the preliminary inquiry it appears that a child
Concerned does not intend to accept responsibility for the alleged offence as
referred to under 128(l)(a), an inquiry magistrate shall, subject to the provi-
sions of subsection (1) regarding sufficiency of evidence, refer the matter to a
prosecutor for charges to be instituted in a Children's Court or any other court
acting in terms of the provisions of this Act.
.s.so
Inquiry magistrate's duty where child previously rHcnsrd or alternatives
to arrest used
112. Where a child has been previously released from detention, or where an
;ilternative to arrest under section 94 has been used, and the matter is to be
transferred to a prosecutor for charges to be instituted in a Children's Court or
any other court in terms of section 110(4)(b), an inquiry magistrate -
(a) shall warn the child in a language that the child under-
stands to appear on a specified date at a specified place
and time at a Children's Court inquiry; and
(b) may extend or confirm any conditions of release that
were in operation by virtue of the provisions of section
104(3) prior to the child's appearance at the prelimi-
nary inquiry.
Inquiry magistrate's duty to inquire into possible release of child from
detention
113. (1) Where a child who appears at a preliminary inquiry has been
arrested, and has not been released previously from detention under section
104, an inquiry magistrate, when -
(a) remanding the matter under section 114(1) or (2); or
(b) referring the matter to a Children's Court or other court
for charges to be instituted in terms of section 110(4)
(b),
shall establish whether the child can be released from detention pending -
(i) finalisation of the preliminary inquiry; or
(ii) the institution of charges in a Children's Court
or any other court.
(2) An inquiry magistrate shall, in making the determination
referred to in subsection (1), have regard to the recommendation til' a probation
officer in respect of release from detention contained in the social assessment
report, as well as any further evidence which has been placed before him by a
child or any other person.
(3) Release of a child into the care of a parent or guardian on one
or more of the conditions set out in subsection (5) shall be considered as a
measure of first resort.
(4) A child may be released on own recognisance with or without
conditions as set out in subsection (5).
(5) Conditions of release of a child for the purposes of this section
include -
(a) the obligation to appear before a Children's Court or
any other court acting in terms of the provisions of this
Act at a specified place on a specified date and at a
specified time;
(b) the obligation to report periodically to a specified per
son or place;
(c) the prohibition not to interfere with witnesses, to tamp-
er with evidence or to associate with a person, persons,
or group of specified people; and
(d) if the preliminary inquiry has been remanded under
section 114, the obligation to appear at further proceed-
ings of the preliminary inquiry at a specified place on a
specified date and at a specified time.
(6) Where a decision is made at the preliminary inquiry to divert
a child under the provisions of section 110(4)(a), the child shall be released
from custody.
Remanding a child for a preliminary inquiry
114. (1) An inquiry magistrate may remand a child for a preliminary
inquiry for a period of <1H hours, if it is necessary for the purposes of -
 (a) securing the attendance of a person necessary for the Circumstances under which a child may be remanded in detention after
finalisation of the inquiry; iinalisation of preliminary inquiry

(b) obtaining information necessary for the finalisation of 115. (1) A child who is accused of having committed an offence may,
the inquiry; after finalisation of a preliminary inquiry, be detained in a place of detention,
i
secure care facility or prison pending plea and trial in a Children's Court or any
(c) establishing the attitude of the victim to diversion; other court acting in terms of the provisions of this Act, provided that -
!T (d) furthering the development of a diversion option; or (a) an inquiry magistrate shall consider the granting of bail
to ensure that the deprivation of liberty of such child is
(e) finding alternatives to pre-trial residential detention. a measure of last resort; and
i" •
(2) A child may be remanded for a preliminary inquiry for a fur- | (b) the child may not be detained in a police cell or lock-
ther period of forty-eight hours, after which the matter may be referred to a up.
prosecutor for charges to be instituted in a Children's Court or any other court
acting in terms of the provisions of this Act. (2) Where an inquiry magistrate has established that a child cannot
he released from detention after the finalisation of a preliminary inquiry
(3) Where a child is remanded for a preliminary inquiry for pur- because -
poses of noting of a confession, admission, pointing out or the holding of an
identity parade, an inquiry magistrate shall inform the child of his right to have (a) it is not in the interests of justice;
a parent, guardian or legal representative during such proceedings.
(b) a remand in detention is required in order to locate the
(4) Where the matter has not been referred to a Children's Court or child's parent or guardian;
any other court as referred to in subsection (2), a preliminary inquiry shall be
closed and - (c) there are compelling reasons to believe that the child
will abscond or will fail to attend a trial;
(a) the child be released from custody; or
(d) . of the seriousness of the offence;
(b) the child be released and an alternative intervention by
a probation officer be applied. (e) of the likelihood that the child will interfere with the
witnesses; or
(5) Where a child cannot be released into the care of a parent or
guardian, the child may, subject to section 113(2), be remanded to a place of (f) of the likelihood that the child will be exposed to
safety or a secure care facility, or if a place of safety or secure care facility is threats or danger by any person,
not available, and subject to the provisions of section 103(7), to a police cell,
pending finalisation of a preliminary inquiry. Ilif, child may be remanded lo a place of safety, secure care facility or prison,
pending the hearing of the mailer before a Children's Court or any other court
ni'ling in terms of llic provisions of this Act, subject to the provisions of sub-
sections (3), (4), (5) ami (d).

(3) In making a determination as to wlu-llu'i llu- placement of a
child shall be in a place of safety or a secure care facility as referred to in sub-
section (2), an inquiry magistrate shall have regard to the recommendations of
a probation officer as contained in the officer's assessment report.
(4) Where a child is fourteen years old but has not attained the age
of eighteen years, and charged with murder, unlawful sexual act, indecent
assault involving the infliction of grievous bodily harm, robbery with aggra-
vated circumstances, or theft of stock, theft of motor vehicle, drug trafficking,
counterfeit goods, counterfeit currency, laundering of money, offences relating
to sale of liquor and gambling, and is alleged that, in respect of drug-traffick-
ing, the value of the dependenceproducing substance in question is more than
M50 000, or any offence relating to the dealing in or smuggling of ammuni-
tion, firearms, explosives or armaments, and release or referral to a secure care
facility is not possible because -
(a) there is no such facility within a reasonable distance
from the court in which the child is appearing;
(b) there is such a facility within a reasonable distance
from the court, but written or oral evidence has been
provided by a social worker that there is no vacancy at
the time of making the decision; or
(c) the inquiry magistrate is satisfied, on evidence placed
before him, that there is a substantial risk that the child
may cause harm to other children in a place of safety or
secure care facility,
the child may be remanded to a prison, provided that such remand to a prison
shall only be possible after finalisation of a preliminary inquiry, and the mat-
ter has been referred to a Children's Court or any other court for charges to be
instituted.
(5) In making an order that a child be remanded to prison as pro-
vided for under subsection (2), an inquiry magistrate shall enter the reasons for
such remand on the record of the proceedings.
(6) Where a child is remanded to a place of safety, care
facility or prison in terms of subsection (2) -
.S.S.S
(a) the child shall appear every 14 days before a Children's
Court or any other court acting in terms of the provi-
sions of this Act, which court shall -
(i) inquire whether detention in a place of safety,
secure care facility or prison remains neces-
sary;
(ii) if ordering further detention of the child, enter
the reason for such further detention on the
record of the proceedings; and
(iii) consider the reduction of any amount of bail
that has been granted in respect of such child;
(b) an officer presiding in a Children's Court shall satisfy
himself that the child is being treated in a manner and
kept in conditions that take account of the child's well
being; and
(c) the plea and trial in a Children's Court or any other
court acting in terms of the provisions of this Act shall
be finalised as speedily as possible.
Failure of child above the minimum age of prosecution to attend assess-
ment or preliminary inquiry
116. (1) If a child above the minimum age of prosecution as referred to
under section 79 fails to appear at an assessment or breaches any conditions of
release from detention in police custody, a probation officer in whose district
the assessment was to have taken place, may request an inquiry magistrate to
issue a warrant of arrest.
(2) If a child fails to appear at a preliminary inquiry, a prosecutor
may request an inquiry magistrate to issue a warrant of arrest.
(3) If a child appears at an assessment or at a preliminary inquiry,
as the case may be, afler the execution of the warrant of arrest referred to in
subsections (1) and (2), the matter shall, in the case of an assessment, forthwith
he set down for tin-, holding, of a preliminary inquiry or, in the case of appear
-S.S6.
jincc at the preliminary inquiry, be proceeded wilh.
(4) Where the preliminary inquiry referred lo in subsection (3)
tjikes place, an inquiry magistrate shall inquire into the reasons for the child's
failure to appear at the assessment or at the preliminary inquiry.
(5) Where an inquiry magistrate finds that the failure of the child
to appear at an assessment or at a preliminary inquiry was due to fault on the
part of the child, he may take that fact into account when making a decision
under section 110(4).
Failure to comply with diversion conditions
117. (1) Where a child has been diverted by a probation officer or pros-
ecutor and fails to comply with a condition of diversion, or with any other
order, or fails to attend a programme, the probation officer or the prosecutor
concerned may request the inquiry magistrate to issue a warrant of arrest or
written notice to appear in respect of such child.
(2) If a child appears after the execution of a warrant of arrest or
as a result of the issue of a written notice to appear as referred to under subsec-
tion (1), the matter shall be set down for holding of a preliminary inquiry
where an inquiry magistrate shall inquire as to the circumstances surrounding
Ihe Failure of the child to comply with the conditions of a diversion option.
(3) Where a child has been diverted by an inquiry magistrate as
referred to in section 110(4)(a) and fails to comply with the conditions of
diversion, or with any other order, or fails to attend a specified programme, an
inquiry magistrate concerned may issue a warrant of arrest or written notice to
appear in respect of the child.
(4) Where a child appears before an inquiry magistrate after a
warrant of arrest or written notice to appear has been issued in terms of sub-
section (3) and the child, at the time of such appearance is still below the age
of eighteen years, the inquiry magistrate shall inquire as to the circumstances
surrounding the failure of the child to comply with the conditions of the diver-
sion option.
(5) An inquiry magistrate may, at the inquiry referred to in subsec-
tions (?,) and (4), decide to -
.S.S7
(a) divert the matter;
(b) divert the matter to the same programme with altered
conditions;
(c) apply any other diversion option as described under
section 132;
(d) refer the matter to a prosecutor for charges to be insti-
tuted in a Children's Court or in any other court acting
under the provisions of this Act; or
(e) make an appropriate order which will assist a child and
his family to comply with the diversion initially
applied.
(6) The execution of a warrant of arrest referred to in this part may
be suspended by an inquiry magistrate, and the officer required to execute the
warrant, may, instead of arresting a child, employ one of the alternatives to
arrest as referred to under section 97.
(7) Where a person who has been arrested on a warrant issued pur
suant to subsections (1) and (3) is no longer below the age of eighteen years at
the time of appearance, that person shall appear before an inquiry magistrate,
who shall inquire as to the circumstances surrounding the failure of the person
to comply with the conditions of the diversion option.
(8) In circumstances referred to under subsection (7), an inquiry
magistrate may take any of the steps referred to in subsection (5)(a), (b), (c),
(d), or (e) or refer the matter to a court other than a Children's Court for pros-
ecution on the original set of facts.
Procedure upon referral of matter to be instituted
118. (1) Upon finalisation of a preliminary inquiry, if diversion has not
taken place, and if an inquiry magistrate has found that there is sufficient evi-
dence to sustain a prosecution of a child as provided under section 111, the
inquiry magistrate shall -
 _S.SK
(a) refer the matter to a proseciilor lor rliarj'i's lo he insti-
tuted in a Children's Court or any oilier court aeting
under the provisions of this Act as referred to in section
105;
(b) warn a parent or guardian of the child to attend the pro-
ceedings referred to in paragraph (a) at a specified
place and time and on a specified date; and
(c) ensure the provision of legal representation for the
child in terms of the provisions of section 148.
(2) Where a child concerned is not in detention after finalisation of
the preliminary inquiry, an inquiry magistrate may -
(a) alter or extend any condition imposed under section
104 or section 113;
(b) alter or extend any order made under section 113(3)
and shall warn any parent or guardian in whose care
the child has been released to appear in a Children's
Court or any other court acting under the provisions of
this Act at a specified place and time and on a specified
date; and
. (d)
(c) warn the child, his parent or guardian to appear in a
Children's Court or any other court acting under the
provisions of this Act at a specified place and time and
on a specified date.
(3) An inquiry magistrate shall recuse himself and may not preside
in a Children's Court in relation to that matter if the magistrate has, during the
course of a preliminary inquiry, heard any information prejudicial to the impar-
tial determination of the matter.
Application for release from detention
119. (1) Nothing contained in this Act shall be construed as precluding
a child who is in detention in respect of an offence from applying for release
from detention at any stage prior to the passing of the senlnur in inspect of
that offence.
(2) A court, in hearing an application referred to in subsection (1),
shall have regard to the circumstances referred to in section 115(3).
(3) An appeal against the decision of a court hearing an application
referred to in subsection (1) may be lodged to the High Court.
PART XIII - RESTORATIVE JUSTICE AND DIVERSION
Restorative Justice
120. The purposes of restorative justice in terms of this Act are to -
(a) provide an opportunity to the person or persons or community
affected by the harm caused to express their views regarding
the impact of such harm;
(b) encourage restitution of a specified object or symbolic restitu-
tion;
(c) promote reconciliation between a child and the person or coin
munity affected by the harm caused; and
empower communities to address problems of children who
are at risk of offending without resorting to criminal justice.
Establishment of Village Child Justice Committee
121. (1) There shall be established a committee for a village that shall
he known as the Village Child Justice Committee.
(2) A Village Child Justice Committee shall be responsible for
handling all restorative justice processes at village level.
(3) A Village Child Justice Committee shall comprise of a village
chief and six other members elected by the community.
(4) A Villaj'.r Child Justice Committee shall elect a chairperson
from among its uu*mlirr;
 S6I

(5) Four members of A Village Child Justice ('ominitlee shall form (5) Failure to notify any person in accordance with the provisions
a quorum at any meeting of the Village Child Justice Commilk-c. of this section shall not affect the validity of the proceedings of a family group
conference unless it is shown that the failure is likely to have materially affect-
(6) Subject to this Act, A Village Child Justice Committee shall ed the outcome of that conference.
determine its own procedure.
(6) The following persons are entitled to attend a family group
(7) A Village Child Justice Committee shall meet as and when it is conference -
necessary or there is a case to be dealt with.
(a) children in respect of whom the conference is held;
Restorative justice processes
(b) parent(s) or guardians of such children;
122. A restorative justice process involves -
(c) members of the families of the children concerned;
(a) families;
(d) a probation officer, where the conference has been con-
(b) a family group conference; vened on the basis of a report from a probation officer;

(c) an open child justice forum; and (e) any relevant body or organisation which the families ol'
children may consider relevant; or
(d) a victim-offender mediation.
(f) any person, body or organisation whose attendance ;il
Family Group Conference the conference is recommended by the Chairperson ol
the Village Child Justice Committee working in con-
123. (1) A family group conference shall be convened by a Chairperson sultation with the concerned families.
of i\e Child Justice Committee in consultation with families of children
concerned. (7) The Chairperson of the Village Child Justice Committee who
convenes a family group conference shall take all reasonable steps to ensure
(2) A Chairperson of a Village Child Justice Committee who con- that all information and advice required by the conference to carry out its func-
venes a family group conference shall notify all persons who are entitled to tions are made available to the conference.
attend the conference of the date, the time and the place at which the confer-
ence is to be held. (8) Where it is appropriate and with the permission of the confer-
ence, any person may attend a family group conference for the purpose of con-
(3) No notice is required to be given pursuant to subsection (1) to veying to that conference any information or advice required by that confer-
any person whose whereabouts cannot, after reasonable enquiries, be ascer- ence to carry out its functions.
tained.
(9) A family group conference shall regulate its own procedure in
(4) A notice required under subsection (2) shall be given within a such manner as it thinks fit.
reasonable time before the conference is to be held.
(10) A rhiiiiprtsun ol the Village Child Justice Committee shall
provide such a d m i u i s t i n l i v r scivuvs ;is may be necessary lo enable u family
 conference to discharge its functions.
(11) The functions of a family group conference are the following:
(a) to consider in relation to a child in respect of whom the
conference was convened such matters relating to the
care and protection of the child as the conference
thinks fit;
(b) where the conference considers that a child in respect
of whom the conference was convened is in need of
care or protection, to make such decisions or recom-
mendations and to formulate such plans as the confer-
ence considers necessary in the best interests of the
child; and
(c) to review the decisions and recommendations made
and the plans formulated by that conference and their
implementation.
(12) A Chairperson of a Village Child Justice Committee who con-
venes a family group conference shall cause to be made a written record of the
details of the decisions and recommendations made and the plans formulated
by Ihe conference pursuant to this section.
(13) A Chairperson of a Village Child Justice Committee who has
Convened a family group conference shall communicate the decisions, recom-
mendations and plans made by the family group conference to every person
I hat will be directly involved in the implementation of such decisions, recom-
mendations or plans and seek their agreement.
(14) Where a Chairperson of a Village Child Justice Committee is
unable to secure an agreement to decisions, recommendations or plans referred
to under subsection (13), the Chairperson of the Village Child Justice
( Committee may, for the purpose of enabling the conference to reconsider the
decisions, recommendations or plans, reconvene that conference.
(15) A family group conference reconvened under subsection (14)
may confirm, rescind or modify its previous decisions, rccoimm-iHlalions or
plans.
(16) A decision, recommendation or plan confirmed or modified
under subsection (15), and any new decision, recommendation or plan made or
formulated under that subsection, shall be deemed to have been made in the
previous conference.
(17) The Chairperson of the Village Child Justice Committee who
convenes a family group conference shall ensure that copies of the proceedings
of the conference, where the proceedings were recorded, are given to all per-
sons present at the conference.
(18) Information, statement or admission made or disclosed in the
course of a family conference shall not be admissible in any court.
(19) No person shall publish any report of the proceedings of a fam-
ily group conference.
(20) Nothing under subsection (19) applies to the publication of sta-
tistical information relating to family conferences or research done in good
faith, relating to family group conferences.
Open Village Healing Forum
124. (1) An Open Village Healing Forum shall be convened by a
Chairperson of a Village Child Justice Committee in consultation with fami-
I ies of the victim and offender.
(2) An Open Village Healing Forum shall operate where a delin-
quent's act includes:
(a) two or more acts of anti-social behaviour;
(b) acts such as burning of grass or any other act of vandal-
ism, which impacts almost equally on all members of a
community;
(c) two or more children are involved;
(d) group ivlaled conflict such as that between two vil-
 (c) a high probability that the mill sorial iVIuiviour or
(a) enable the victim an offender to talk about the crime,
offence will be replicated.
express their feelings and concerns;
(3) The following groups of people are entitled to attend an Open
Village Healing Forum: (b) enable the victim and an offender to participate direct-
ly in developing options for trying to make things right;
and
(a) the children concerned and their families;
(c) afford an offender an opportunity to make apologies,
(b) a Probation Officer where the Open Village Healing
provide information and develop reparative plans and
Forum is convened on the basis of a recommendation
gain insight for personal growth.
of the Probation Officer;
(4) A Chairperson of a Village Child Justice Committee who con-
(c) representation of children of the concerned village;
vened a victim-offender mediation shall cause to be made a written record of
the details of the decisions and recommendations made and the plans formu-
(d) any relevant body or organisation including Youth
lated in the victim-offender mediation.
Organisations, whose attendance at the forum is rec-
ommended by a Village Child Justice Committee in
(5) A Chairperson of a Village Child Justice Committee who has
consultation with the concerned parties; and
convened a victim-offender mediation shall communicate decisions, recom-
mendations and the plans made by the victim-offender mediation to every per-
(e) a representation of the concerned village.
son that will be directly involved in the implementation of the decisions, rec
ommendations or plans and seek their agreement.
(4) The Village Child Justice Committee shall determine the size
of the representatives in 3(c), (d) and (e).
Referral to restorative justice process
(5) A Village Child Justice Committee shall make necessary
126. (1) Referral to restorative justice process may be made by -
;irr;mj»eincnts to ensure safety and security as well as orderly procedures for an
< )|)f,n Village Healing Forum.
(a) a child or his parent, guardian or any appropriate adult;
Victim-offender mediation
(b) a chief;
125. (1) Victim-offender mediation shall be convened by a Chairperson
(c) a police office;
of a Village Child Justice Committee in consultation with the victim and
offender.
(d) a prosecutor; and
(2) A victim and an offender shall meet in a safe and structured set-
(e) a Children's Court.
ling with the assistance of a trained mediator or Chairperson of the Village
Child Justice Committee.
(2) Where the case is referred to restorative justice process by a
(3) The functions of the victim-offender mediation are to Children's Court, police or probation officer, and the victim and offender do
not agree on the decision lo be m;ide at. such a forum, the case shall go back to
the Children's Conrl, I he pulier or probation officer for further action.
 .S()7

(3) A child who persists in engaging in anli soriiil behaviour that (3) In making a decision whether or not to divert a child, consider-
renders him at risk of offending may be referred to any restorative justice ation shall be given as to whether this would be in the best interests of the
process by - child.

(a) his parent, guardian or any appropriate adult;
(b) a chief who is concerned with anti-social behaviour of
the child residing in his village, the parents of whom
are considered unable to control;
(4) No child may be unfairly discriminated against on the basis of
race, gender, sex, ethnic or social origin, colour, sexual orientation, religion,
conscience, belief, culture, language, birth or socio-economic status in the
selection of a diversion programme, process or option and all children shall
have equal access to diversion options.

(c) a police officer acting under section 94; (5) Corporal punishment and public humiliation shall not be ele-
ments of diversion.
(d) a prosecutor;
(6) A child under the age of thirteen years must not be required or
(e) a Probation Officer acting under section 91(3)(c); or permitted to perform community service or other work as an element of diver-
sion.
(f) an inquiry magistrate acting under section 110(1) and
(7) Diversion programmes shall -

Diversion (a) promote the dignity and well-being of a child, and the
development of his sense of self-worth and ability to
127. (1) The purposes of diversion in terms of this Act are to -
contribute to society;
(a) encourage a child to be accountable for the harm
caused by him; (b) not be exploitative, harmful or hazardous to a child's
physical or mental health;
(b) promote an individualised response to the harm caused
which is appropriate to the child's circumstances and . (c) be appropriate to the age and maturity of a child;
proportionate to the circumstances surrounding the
harm caused; (d) not interfere with a child's schooling;

(c) promote the reintegration of a child into the family and
community;
(d) prevent stigmatisation of a child which may occur
through contact with the criminal justice system.
(2) Where possible and appropriate, diversion shall include
restorative justice elements which aim at healing relationships, including the
relationships of victims and offenders.
(e) where possible and appropriate, impart useful skills;
(f) where possible and appropriate, include an element
which seeks to ensure that a child understands the
impact of his behaviour on others, including the vic-
tims of the offence, and may include compensation or
restitution; and
(g) wlu-u- possible and appropriate, be presented in a loca
lion iriisnuahly accessible to children.
 (8) A child shall not be required to pay lor admission to a diver-
•
(2) Diversion options t h a i may be applied in respect of a child in
sion programme.
the first instance are not limited lo but may include -
Circumstances to be considered for diversion
(a) an oral or written apology to a specified person or per-
sons or institution;
128. (1) A child suspected of having committed an offence may only be
referred for diversion by a probation officer, prosecutor, an inquiry magistrate
(b) referral to a commissioned officer of the police for pur-
or officer presiding in a Children's Court as referred to in this Act, if -
poses of the administration of a police caution without
conditions;
(a) such child acknowledges responsibility for the alleged
offence and consents to diversion;
(c) placement under a supervision and guidance order for
a period not exceeding three months or as determined
(b) there are reasons to believe that there is sufficient evi-
by the circumstances of the case;
dence for the matter to proceed to trial;
(d) placement under a reporting order for a period not
(c) there is no risk of infringement of the child's procedur-
exceeding three months;
al rights; and
(e) issuing of a compulsory school attendance for a period
(d) the child has a fixed address.
riot exceeding three months;
(2) Where circumstances as referred to in subsection (1) exist,
(f) issuing of a family time order for a period not exceed
diversion shall be considered as a matter of first resort.
ing three months;
Diversion options
(g) issuing of a positive peer association order in respect of
a specified person or persons or specified place for a
I -*). (1) A probation officer, prosecutor, an inquiry magistrate or officer
period not exceeding three months;
presiding in a Children's Court, in selecting a diversion under this section, shall
ensure that -
(h) issuing of a good behaviour order with conditions;
(a) due regard is given to a child's cultural, religious and
(i) issuing of an order prohibiting the child from visiting,
linguistic context, the child's community of origin and
frequenting or appearing at a specified place;
the child's age;
(j) compulsory attendance at a specified centre or place
(b) the option recommended or selected is proportionate to
for a specified vocational or educational purpose and
the circumstances of a child, the nature of the offence
for a period not exceeding 5 hours each week, for a
and the interests of the society; and
maximum of eight weeks;
(c) due regard is had to the various levels of diversion
(k) symbolic restitution in respect of a specified object to a
options.
person, persons, group or institutions; and
y/o
(1) restitution of a specified objivl lo ;i specified victim or
victims of the alleged offence where ihe object con-
cerned can be returned or restored.
(3) Diversion options that may be applied in respect of a child in
the second instance are not limited to but may include -
(a) placement under a supervision and guidance order for
a period longer than three months but not exceeding six
months;
(b) placement under reporting order for a period longer
than three months but not exceeding six months;
(c) issuing of compulsory school attendance order for a
period longer than three months but not exceeding six
months;
(d) issuing of a family time order for a period longer than
three months but not exceeding six months;
(e) issuing of a positive peer association order in respect of
a specified person or persons or a specified place for a
period longer than three months but not exceeding six
months;
(f) compulsory attendance at a specified centre or place
for a specified vocational or educational purpose for a
period not exceeding 5 hours each week, for a maxi-
mum of twelve weeks;
(g) performance without remuneration of some service for
the benefit of the community under the supervision or
control of an organisation or institution, or a specified
person or group identified by a probation officer when
effecting an assessment for a maximum period of 25
hours, and to be completed within a maximum period
of three months;
(h) rcslilution of a specified object to a specified victim or
victims of an alleged offence where the object con-
cerned can be returned or restored or payment of com-
pensation to a maximum of M5000.00 to a specified
person, persons, group or institution where a child or
his family is able to afford this;
(i) referral to appear at a victim-offender mediation, a
family group conference or other restorative justice
process at a specified time, on a specified date and at a
specified place; and
(j) one or more of the options set out in paragraphs (a) to
(i) of this subsection or in paragraphs (a), (i) or (1) of
subsection (2) used in combination, with due regard to
the age of the child concerned, the circumstances of the
child and his family, and the nature of the offence.
(4) Diversion options that may be applied in respect of a child in
the third instance are not limited to but may include -
(a) placement under a supervision and guidance order for
a period longer than six months but not exceeding one
year in duration;
(b) compulsory attendance at a specified centre or a place
' for a specified vocational or educational purpose for a
period of not more than 20 hours each week for a max-
imum of six months;
(c) performance without remuneration of some service for
the benefit of the community under the supervision and
control of an organisation or institution, or a specified
person or group identified by a probation officer when
effecting an assessment for a period exceeding 25
hours but not exceeding 100 hours to be completed
within a maximum period of six months;
(d) releiral lo appear at a victim-offender mediation, a
limiilv j'ion|> conference or oilier restorative j

processes at a specified plaiv and linu- and on a speci-
fied date;
(e) restitution of a specified object to a victim or victims of
the alleged offence where the object concerned can be
returned or restored or payment of compensation to a
maximum of Ml0,000,00 to a specified person, pers-
ons, group or institution where the child or his family
is able to afford this;
(f) referral to a programme with a residential element,
where the duration of the programme does not exceed
three months; or
(g) one or more of the above options used in combination,
or combined with one or more of the orders referred to
in paragraphs (b), (c), (d), or (e) of subsection (3) or in
paragraph (a) of subsection (3) or in paragraph (a) of
subsection (2).
(5) Diversion options that may be applied in respect of a child over
the age of fourteen years in the fourth instance, which shall be imposed only
by an inquiry magistrate or other officer presiding in proceedings in terms of
the provisions of this Act if he has reason to believe that the Children's Court,
in relation to the circumstances of the child and the offence, would impose a
lerm of imprisonment exceeding six months or a reform school sentence, are
not limited to but may include -
(a) referral to a programme with a residential element,
where the duration of the programme does not exceed
six months;
(b) performance without remuneration of some services
for the benefit of the community under the supervision
and control of an organisation or institution, or a spec-
ified person or group identified by a probation officer
effecting the assessment for a maximum period of 250
hours, to be completed within a m a x i m u m period of
twelve months;
573
(c) where a child is over the age of compulsory school
attendance, and is no longer attending formal school-
ing, compulsory attendance at a specified centre or
place for a specified vocational or educational purpose
for a maximum period of not more than 35 hours per
week, to be completed within a maximum period of six
months; and
(d) any of the options referred to in paragraphs (a), (d), (c)
and (g) of subsection (4) in combination with any of
the options referred to in this subsection.
(6) A victim-offender mediation, family group conference or other
restorative justice process referred to in subsections (3)(i) and (4)(d) may apply
any option referred to under subsections (2), (3) or (4) to a child referred to
such mediation, conference or process, or reach another resolution appropriate
to the child, his family and to local circumstances, provided that such media-
tion, conference or process may not, in the case of another resolution, contra
vene any applicable principle under this Act.
Referral and powers of prosecution in respect of children above the mini-
mum age of prosecution with respect to diversion
130. (1) Subject to the provisions of section 90(1) and (2), where a
probation officer, in relation to a child above the minimum age of prosecution,
has recommended that -
(a) the child be diverted to a specified process, programme
or appropriate alternative order mentioned under sec-
tion 91(3)(a);
(b) the matter involving the child be transferred to a
Children's Court in terms of section 91(3)(c);
(c) no further action be taken in terms of section 9l(3)(b);
or
(d) Ihe mailer involving the child should not be diverted,
Ihe matter shall bo s u l u n i l l n l In ;i prosecutor.
574
(2) Upon consideration of the recommendations ol a probation
officer as referred to in subsection (l)(a), (b) and (c), a prosinilor may -
(a) concur with the recommendations of the probation offi-
cer and divert the matter, arrange for the transfer of the
matter to a Children's Court, or decline to charge the
child concerned; or
(b) disagree and state reasons why he disagrees with the
recommendations of the probation officer, and arrange
for the opening of a preliminary inquiry.
(3) Upon consideration of the recommendations of a probation
officer as referred to in subsection (l)(d), a prosecutor may -
(a) disagree with the recommendations of the probation
officer and divert the matter, arrange for the transfer of
the matter to a Children's Court inquiry as referred to
under subsection (2)(a), or decline to charge the child
concerned; or
(b) concur with the recommendations of the probation offi-
cer, and arrange for the opening of a preliminary
inquiry.
(4) Where a prosecutor takes one of the steps outlined in subsec-
tion (2)(a) or (3)(a), no charges against a child shall be instituted in accordance
with section 105, provided that where the child fails to comply with a condi-
tion of diversion, the provisions of section 117 shall apply.
(5) Where an assessment has not been effected, a prosecutor to
whom notice of a case involving a child under the age of eighteen years has
been brought, shall arrange that assessment be effected, or, if this is not possi-
ble, arrange for the opening of a preliminary inquiry.
Y/.S
I'AKT XIV - BAIL AND DETENTION PENDING T R I A L
Bail
131. (1) Where a child appears before a Children's Court charged with
an offence, a magistrate or presiding officer shall inquire into the case and
unless there is a serious danger to the child, release the child on bail -
(a) on a court bond on his own recognisance; or
(b) with sureties, preferably, the child's parents, guardian,
family member or responsible person on a court bond.
(2) If bail is not granted, a Children's Court shall record the rea-
sons for refusal and inform the child of his right of appeal or review to the High
Court.
Remand
132. (1) Where a child is not released on bail, a Children's Court may
make an order remanding or committing him in a remand home.
(2) If there is no remand home within a reasonable distance from
a Children's Court, the Children's Court shall make an order as to the deten-
tion of a child in a place of safe custody as it deems fit.
(3) For the purposes of this section, a place of safe custody shall
be a place which a Children's Court considers suitable to ensure that a child
shall be brought before it when required and shall not associate with any adult
detainee.
(4) Remand in custody shall be for the shortest period possible and
shall not exceed three months.
(5) No child shall be remanded in custody with an adult.
(6) A child who escapes from a remand home or other place of safe
custody in which he is detained may be arrested with or without warrant and
be returned to thai place.

(7) Pending the establishment of a remand home. Ihe Minister may
declare, by notice in the Gazette, any cstablishmeiil as ;i ivinand home.
(8) Notwithstanding anything to the contrary herein contained, a
Children's Court shall consider alternatives to remand, such as close supervi
sion or placement with a fit and proper person determined by it on the recom-
mendation of a probation officer.
PART XV - CHILDREN'S COURT
Jurisdiction of Children's Court
133. (1) Every Subordinate Court shall be a Children's Court within its
area of jurisdiction and shall have jurisdiction to hear and determine cases of
children in need of care, protection and rehabilitation and charges as appear in
Schedules I and H
(2) A presiding officer in proceedings in a Children's Court shall
be designated by the Chief Justice and the Children's Court shall, as far as pos-
sible, be staffed by specially trained personnel.
(3) A court room, where practicable, shall be located and designed
in a way which is conducive to the dignity and protection of children and the
proceedings shall be informal, child-friendly and allow the active participation
of all persons who need to be involved in the proceedings.
Proceedings under this Act by a court other than a Children's Court
134. (1) A court, other than a Children's Court, has jurisdiction to try
the case of an accused child where such child is charged with murder, treason
or sedition or where he is charged with any other offence and -
(a) the likely sentence will exceed the jurisdiction of the
Children's Court;
(b) there are multiple charges in respect of the child con-
cerned and any other court other than a Children's
Court has jurisdiction in respect of one or more of
those charges; or
577
(c) ;i division has been made under section 140 that there
will he a joinder of trials.
(2) Where the Director of Public Prosecutions is satisfied that the
circumstances referred to under subsection (l)(a) or (b) exist in respect of the
matter involving a particular child, he may, prior to the commencement of the
trial, refer the matter to the appropriate court for plea and trial.
(3) A Subordinate Court and a Children's Court have concurrent
jurisdiction in respect of matters in which a child is charged together with an
adult and a successful application for joinder of the trials has been made under
section 140.
(4) A court hearing the matter under this section must conduct the
proceedings in accordance with the provisions of this Act and with due regard
l.o the best interests of a child.
(5) Where a Children's Court has found that a child is in conflict.
with the law and it is of the view that exceptional circumstances exist which
indicate that the appropriate sentence may exceed its sentencing jurisdiction, it
may refer the matter to a Subordinate Court if it has more penal powers or the
High Court for sentencing, and cause a copy of the record of the proceedings
to be made available to the Children's Court.
Assistance to children who appear in court
135. (1) At the commencement of proceedings in a Children's Court, a
presiding officer shall inform a child appearing before such court in a language
that the child understands of the following rights -
(a) the right to challenge testimony of witnesses;
(b) the right to remain silent;
(c) the right to have the child's parents or guardian present
at the proceedings; or
(d) the right to choose and to be represented by a legal rep-
resentative at his own cost.
578
(2) A child who is under the ago of dj'Jilrrn yr.iis shall be assist-
ed by his parent or guardian at criminal proceedings, and this requirement may
be dispensed with where -
(a) all efforts to locate such person have been exhausted
and any further delay would be prejudicial to the best
interests of the child; or
(b) the child is charged with an offence under Schedule 1
and the sentence referred to under section 156(1) is
likely to be imposed.
Parent or guardian to attend proceedings
136. (1) A parent or guardian of a child who has been warned by an
inquiry magistrate to attend proceedings involving such child under section
I (8(l)(b) shall attend such proceedings unless exempted from the obligation to
do so under subsection (3).
(2) If a person referred to under subsection (1) has not been
warned to attend the relevant proceedings, a court before which the proceed-
ings arc pending may at any time during the proceedings direct any person to
warn the person referred to under subsection (1) to attend such proceedings.
(3) A person who has been warned in terms of subsection (1) or
(2), may apply to an officer presiding in a court in which a child is to appear
for exemption from the obligation to attend the proceedings in question, and if
such presiding officer exempts such person, he shall do so in writing.
(4) A person who has been warned under subsection (1) or (2) and
who has not been exempted from the obligation to attend the relevant proceed-
ings under subsection (3), and a person who is present at proceedings and who
is warned by the court to remain in attendance, shall remain in attendance at
the relevant proceedings, whether in that court or any other court, unless
excused by the court before which such proceedings are pending.
(5) A person who has been warned in terms of subsection (1) or (2)
and who fails to attend the proceedings in question or who fails to remain in
attendance at such proceedings in accordance with the provisions of subsection
(4), commits an offence and is liable on conviction to a fine not exceeding one
thousand Maloti or lo imprisonment lor a period not exceeding one month.
Charge sheet and withdrawal of charge
137. (1) Allegations contained in any charge sheet shall be formulated
in a language that a child can read and understand.
(2) A legal representative, parent or guardian of a child offender
shall be provided with a copy of the charge sheet at the beginning of the crim-
inal proceedings.
(3) Nothing contained in this Act shall be construed as precluding
the prosecuting authority from exercising the discretion to withdraw a charge
at any stage of the criminal proceedings.
Conduct of proceedings in Children's Court
138. (1) An officer presiding in a Children's Court may, if it would be
in the best interests of the child, actively participate in eliciting evidence from
any person involved in the proceedings.
(2) All proceedings conducted in a Children's Court shall be held
in camera and the privacy of a child concerned and other child witnesses, sub-
ject to the provisions of section 149, shall be protected at all times.
(3) The proceedings of a Children's Court shall, with regard to a
child's procedural rights, be conducted in an informal manner to encourage the
maximum participation of a child, his parent or guardian and other child wit-
nesses.
(4) Where the presence of a parent, guardian or any other person
who is not an officer of a Children's Court is likely to discourage the maximum
participation of a child, the Children's Court shall order that person to recuse
himself from the proceedings.
(5) A child shall be permitted to speak in his own language with
the assistance, where necessary, of an interpreter and the presiding officer shall
ensure that they arc addressed in a language that they understand.
.sso
.SSI

(6) In the case of a child with speech or hrannj.', impairment, a

Separation and joinder of trials involving children and adults
Children's Court shall order that a person with expertise in si)jii language be
engaged to assist the child and the court.
140. (1) If a child appearing in a Children's Court is co-accused with an
adult, the case of the adult concerned shall be separated from that of the child
(7) A presiding officer shall ensure that the conduct of all proceed-
and is not subject to the provisions of this Act unless any person involved in
ings and the conduct of all court personnel are conducive to the protection of
all the children participating in the proceedings. the proceedings, including the child, his parent, such child's legal representa-
tive and the prosecutor, before the commencement of the trial, may make an
application to the court in which the adult is due to appear for a joinder of the
(8) In cases involving children in conflict with the law, no hand-
cuffs, leg-irons or other restraints may be used when a child appears in a trials concerned.
Children's Court, unless an imminent danger exists that the safety of any per-
son may be endangered if such restraints are not used. (2) A person making an application for joinder of trials to the court
in which the adult concerned is to appear shall give notice to all parties con-
cerned.
(9) A child held in a lock-up, cell or at the court on suspicion of
having committed an offence or who is being transported to court shall be kept
(3) The rules of the court to which an application as referred to in
separately from adults and be treated in a manner and kept in conditions which
take account of his age. subsection (1) is made, relating to applications, time periods for applications
and opposition of applications, apply to the provisions of this section.
(10) Subject to the provisions of subsection (7), a female child
(4) If a person making an application under this section has shown,
offender shall be kept separately from any male child offender.
on a balance of probabilities, that a miscarriage of justice or prejudice to UK-
victim or victims of the alleged offence would otherwise occur, the court lo
(11) The proceedings of a Children's Court may, at the discretion of
which the application is directed, may order a joinder of the trial of a child and
a presiding officer, be held at a place other than that of the Children's Court.
adult concerned, provided that the best interests of the child are duly consid-
ered.
(12) A presiding officer shall protect a child offender and other
child witnesses from hostile or intimidating cross-examination where such
(5) If a court makes a finding under subsection (4), the matter
cross-examination is regarded by the presiding officer as being prejudicial to
before a Children's Court shall be transferred to the court in which the adult is
Ihe well-being of the child or the fairness of the proceedings.
to appear.
Evidence in cases involving child offenders
(6) A court to which the matter has been transferred under
subsection (5), shall act in accordance with the provisions of this Act in rela-
139. (1) Evidence of admissions, confessions and pointing out made
tion to the proceedings involving a child.
under coercive circumstances or in the absence of a child's parent, guardian or
legal representative is inadmissible in proceedings in a Children's Court or any
Separation and joinder of trials involving children only
other court hearing a matter in respect of which a child is an accused person.
141. (1) A prosecutor may join the trial of a child offender with that of
(2) No evidence of an admission, confession or pointing out made
any other accused child in the same proceedings at any time before evidence
by a child during an assessment or during the course of a preliminary inquiry
is admissible in proceedings in a Children's Court. has been led in respect of Ihe charge in question.

(2) Whcir Iwn »M inoir children are charged jointly, whether with
(he same offence or different offences, a Children's ( ' o m l may ;it ;iny time dur-
ing the trial, upon the application of the prosecutor or by or on behalf of any
of the children, direct that the trial of any one or more of (he children shall be
held separately from the trial of the other children, and the Children's Court
may abstain from giving judgement in respect of any such children.
Adjournment of proceedings
142. (1) A Children's Court or any other court hearing a matter in
respect of which a child is an accused person shall finalise all trials of accused
children as speedily as possible and shall ensure that remands are limited in
number and in period between remands.
(2) A court other than a Children's Court hearing a matter in
respect of which a child is an accused person shall ensure that trials of accused
children receive priority on the roll of such court.
(3) Where a child has been remanded to custody, a presiding offi-
cer shall ensure that the requirements set out under section 116(6) regarding
remands to places of safety or prison are complied with.
(4) Where a child has been remanded in custody pending trial in a
('hildrcn's Court or any other court hearing a matter in respect of which the
child is an accused person, the plea and trial of such child shall be finalised
within a period not exceeding three months, after which period the child shall
be released from detention.
Towers of officer presiding in a Children's Court
143. (1) If, at any time before conviction, or after conviction and before
sentence, a child accepts responsibility for an offence and a Children's Court
in which the child appears is of the opinion that the matter be diverted, the
court may refer the child to any diversion option referred to under section 129,
provided that any finding of guilt shall be considered not to have been made.
(2) If, at any time before conviction, or after conviction and before
sentence, a Children's Court is of the opinion that substantial grounds exist that
an alternative dispute resolution mechanism may be appropriate to the resolu-
tion of the matter before the court, the court may stop the proceedings and
order lhat the matter be referred to a victim-offender mediation, a family group
conference or other restorative dispute resolution process or make any other
order as it may deem necessary to resolve the matter.
(3) Where the matter is referred to a victim-offender mediation,
family group conference or other restorative dispute resolution process, writ-
ten recommendations emanating from such mediation, conference or process
shall be re-submitted to a Children's Court within fourteen days if a child is
not in custody.
(4) Where a child is in custody, written recommendations emanat-
ing from such mediation, conference or process shall be re-submitted to a
Children's Court within five days after referral of the matter upon which such
court may -
(a) confirm the recommendations by making such recom-
mendations an order of the court;
(b) substitute or amend the recommendations and make an
appropriate order; or
(c) reject the recommendations and proceed with the trial.
(5) Where a Children's Court acts under the provisions of subsec-
tion (4)(a) or (b), any finding of guilt made in relation to the matter before the
Children's Court shall be considered not to have been made.
Failure to attend court proceedings
144. (1) Where a child fails to appear at any proceedings in a Children's
Court or any other court hearing a matter in respect of which the child is an
accused person, a prosecutor may request a presiding officer in such proceed-
ings to issue a warrant of arrest in respect of such child.
(2) Where a presiding officer, upon the appearance of a child in a
(Children's Court or any other court hearing a matter in respect of which the
child is an accused person, after the execution of a warrant of arrest, finds that
I he failure of the child to appear at the proceedings concerned was due to fault
on the part of the child, he may take that factor into account when making a
decision as to how llic mailer should proceed.
354
.SKS

Privacy and confidentiality

mention the name of a child charged or against whom or in connection with
whom the offence in question was alleged to have been committed or of any
145. (1) Where a child appears before a Children's ('ourl or any other
child witness at such proceedings, and may not mention the name of a person
court hearing a matter in respect of which the child is an accused person, no
accused with the child or place where the offence in question was alleged to
person other than the persons referred to under sections 80(3) and 107(4) may
have been cornmitted if the child's name may be revealed.
he present unless such person's presence is necessary in connection with such
proceedings or is authorised by the court on good cause shown.
(5) Nothing under this section prevents publication of information
or making of reports that expose the identity and names of persons, institutions
(2) No person, institution or organisation may publish in any man-
and organisations that are involved in the commission or aiding and abetting
ner whatsoever any information which reveals or may reveal the identity of a
the commission of offences involving children.
child appearing at an assessment, a preliminary inquiry or before a Children's
Court or any other court hearing a matter in respect of which the child is an
(6) Any person who publishes any information in contravention of
accused person, or of a witness under the age of eighteen years appearing at
this section or contrary to any direction or authority under this section or who
any proceedings referred to in this Act.
in any manner reveals the identity of a child witness in contravention of a
direction under this section, commits an offence and on conviction is liable to
(3) Subject to the provisions of subsection (4), no prohibition or
a fine not exceeding fifteen thousand rnaloti or to imprisonment for a period
direction under this section may prevent -
not exceeding fifteen months or both.
(a) any person, institution or organisation from gaming
Evidence through intermediaries
access to information pertaining to a child or children
if such access would be in the interests, safety or wel-
146. (1) Where proceedings involving children are pending before any
fare of any such child or of children in general;
court and it appears to such court that it would expose any witness under the
age of eighteen years to undue mental stress or suffering if he testifies at such
(b) a publication, in the form of a law report made in good
proceedings, the court may, subject to subsection (5), appoint a competent per-
faith of -
son as an intermediary in order to enable such witness to give evidence through
an intermediary.
(i) information for the purpose of reporting any
question of law relating to the proceedings in
(2) Except for examination by the court, any examination, cross-
question; or
examination or re-examination of any witness in respect of whom a court has
appointed an intermediary under subsection (1), shall be done in any manner
(ii) any decision or ruling given by any court on
other than through the intermediary.
such question, and

(c) a publication, in the form of a report made in good faith
of a professional or technical nature, on research
results and statistical data pertaining to a child if such
publication would be in the interests, safety or welfare
of the child in general.
(3) An appointed intermediary may, unless the court directs other-
wise, convey the general purport of any question to the relevant witness.
(4) If a court appoints an intermediary under subsection (1), the
court may direct that the relevant witness may give his evidence at any place -

(4) The reports referred to under subsection (3)(h) and (c) shall not (a) whirh is formally arranged to set that witness at ease;
 R SK7
(b) which is so situated llial any prison whose presence
may upset that witness, is outside (he sij'Jil and hearing
of that witness; and
(c) which enables the court and any person whose pres-
ence is necessary at the relevant proceedings to see and
hear, either directly or through the medium of any elec-
tronic or other devices, that intermediary as well as that
witness during his testimony.
(5) The Minister may by notice in the Gazette determine the per-
sons or the category or class of persons who are competent to be appointed as
intermediaries.
(6) An intermediary who is not in the full-time employment of the
State shall be paid such travelling and subsistence and other allowances in
respect of the services rendered by him as the Minister, in consultation with the
Minister of Finance, may determine.
(7) No oath, affirmation or admonition which has been adminis-
tered through an intermediary shall be invalid and no evidence which has been
presented through an intermediary shall be inadmissible solely on account of
the fact that such intermediary was not competent to be appointed as an inter-
mediary under subsection (5), at the time when such oath, affirmation or admo-
niiion was administered or such evidence was presented.
(8) If at any proceedings it appears to a court that an oath, affirma-
tion or admonition was administered or that evidence has been presented
through an intermediary who was appointed in good faith but, at the time of
such appointment was not qualified to be appointed as an intermediary under
subsection (5), the court shall make a finding as to the validity of that oath,
affirmation or admonition or the admissibility of that evidence, as the case may
be, with due regard to -
(a) the reason why the intermediary concerned was not
qualified to be appointed as an intermediary, and the
likelihood that the reason concerned will affect the reli-
ability of the evidence so presented adversely;
(b) the mental stress or suffering which the witness, in
respect of whom that intermediary was appointed, will
be subjected to if that evidence is to be presented a
new, whether by the witness in person or through
another intermediary; and
(c) the likelihood that real and substantial justice will be
impaired if that evidence is admitted.
(9) Nothing under this section prevents the prosecution from pre-
senting a new any evidence which was presented through an intermediary
referred to under subsection (7).
(10) The provisions of subsection (7) shall also be applicable in
respect of cases where an intermediary referred to in that subsection has been
appointed, and in respect of which, at the time of the commencement of that
subsection, the trial court or the court considering an appeal or review, has not
delivered judgement.
PART XVI - LEGAL REPRESENTATION
Principles relating to legal representation
147. (1) A child has a right to legal representation of his own choice and
at his own cost in any legal proceedings.
(2) A legal representative appearing on behalf a child under this
Act shall -
(a) allow the child to give independent instruction on the
manner in which the case is to be conducted;
(b) clearly explain the child's rights and responsibilities in
relation to any proceedings under this Act, in a lan-
guage which he can understand;
(c) encourage informed decision-making by explaining
possible options and the consequences of decisions;
(d) promote diversion where appropriate whilst ensuring
thai ihr. rhild is not unduly influenced to acknowledge
 guilt;
(e) ensure that all time periods or delays throughout the
case are kept to the minimum ami thai remands are lim-
ited in number and period of time between each
remand;
(f) ensure that the child is able to communicate in his lan-
guage, and in cases where the legal representative does
not speak the same language as the child, ensure that an
interpreter is used who should also be apprised of these
principles; and
(g) become acquainted with the local options for diversion
and alternative sentencing.
Appointment of a legal representative
148. (1) A child may have legal representation of his own choice and at
his own cost at any stage of proceedings under this Act.
(2) A child shall be advised by a social worker, police officer, a
probation officer, an inquiry magistrate and an officer presiding in a Children's
('oiirt that he has the right to legal representation.
PART XVII - SENTENCING
Power to impose sentence after a charge is proved
149. A Children's Court or any other court hearing a matter in respect of
which a child is an accused person may, after proof of a charge against the
child, impose a sentence in accordance with the provisions of this Part.
Pro-sentence report
150. (1) A Children's Court or any other court imposing a sentence
Under the provisions of this Act shall require the preparation and placement of
a pro-sentence report before it, whether written or verbal, by a probation offi-
cer, prior to the imposition of sentence or the court may dispense, with the pre-
senlence report where the charge relates to an offence listed in Schedule 1 or
where requiring such a report would cause undue delay in the finalisation of
the case, and which delay would be prejudicial to the best interests of the child.
(2) A Children's Court or any other court sentencing a person
under the age of eighteen years, shall not impose a sentence with a residential
element, unless a pre-sentence report has been placed before such court.
(3) A Children's Court or any other court hearing a matter in
respect of which a child is an accused person, which imposes any sentence
involving detention in any residential facility, shall certify on the warrant of
detention that such pre-sentence report has been placed before the court prior
to the imposition of the sentence.
(4) Where the certification referred to under subsection (3) does
not appear on a warrant of detention issued under the provisions of this Act, a
person admitting a child to a residential facility shall remit the matter back to
the court.
(5) No person may admit a child under the age of eighteen years to
any residential facility under this Act unless a warrant of detention contains the
certification referred to under subsection (3), and a person who admits the
child without the necessary certification commits an offence and on conviction
is liable to a fine not exceeding two thousand Maloti or to imprisonment for a
period not exceeding two months or both.
Evidence of previous diversion and other evidence relevant to sentence
151. (1) Evidence that a child has been previously diverted and has
attended programme or completed community service or other diversion
option may be adduced after conviction and before the imposition of sentence,
provided that such evidence of previous diversion may not be considered in
aggravation of the sentence.
(2) The evidence of the previous diversion referred to under sub-
section (1) may be considered relevant to the selection of a particular pro-
gramme, community service option or other sentence option referred to under
sections 153, 154, 155, 156 or 157.
(3) A Children's ('our! shall request a child and his parents or
guardian to address the eouil on sentence, and, where a pro-sentence report has
hcen submitted, shall allow the child and his parents or j'.naidian an opportuni-
ty to place in dispute any finding or recommendation made in such report.
(4) The prosecution may, after conviction, prove any previous con-
victions against a child, and the court shall establish whether the child admits
or denies any such previous convictions:
Provided that the prosecution may lead evidence to prove any convictions
denied by the child.
(5) For the purposes of subsection (4), a document relating to fin-
ger prints of a child which emanates from the office of the Commissioner of
Police is admissible as preliminary proof of the facts contained therein.
Nature of sentences
152. A presiding officer imposing a sentence under this Act may impose any
one of the options referred to under section 129(2), (3), (4) or (5), or any of the
sanctions referred to in sections 153, 154, 155 and 156.
Sentences involving residential and non-residential element
153. A sentence not involving a residential element which is available as a
sentence for the purposes of this Act includes -
(a) restitution of a specified object to a specified victim or victims
of an offence where the object concerned can be returned or
restored, or payment of compensation to a specified person,
persons, group or institution in an amount which a child or his
family is able to afford;
(b) in a matter where there is no identifiable person or persons to
whom compensation or reparation could be paid, payment of
a sum of money or restitution of specified goods to a commu-
nity, organisation, charity or welfare organisation concerned
with activities which benefit children, identified by the child
who is to be sentenced;
(c) any form of symbolic restitution;
(d) an oral or written apology to a specified person or institution;
(e) a correctional reprimand;
(f) placement under a good behaviour order for a period not
exceeding six months;
(g) placement under a family time order for a period not exceeding
six months;
(h) placement under a compulsory school attendance order;
(i) placement under a positive peer association order for a period
not exceeding six months;
(j) that a child and members of his family attend guidance or
counselling with a specified provider of such services, for a
period not exceeding twelve months;
(k) placement under the care and control of an appropriate adult
specified by the court;
(1) placement under a supervision and guidance order for a period
not exceeding twelve months;
(m) compulsory attendance at a specified centre or place for a spec-
ified programme, vocational or educational purpose, for a peri-
od not exceeding 20 hours each week, for a maximum of six
months:
Provided that where a child is over the age of compulsory school attendance
and is no longer attending formal schooling, compulsory attendance at a spec-
ified centre or place for a specified educational or vocational purpose for a
maximum period of not more than 35 hours per week to be completed within
a maximum period of twelve months may be imposed; or
(n) performance without remuneration of some service for the ben
efit of the community under the supervision or control of an
organisation or an institution, or a specified person or group
idfiitilit'd hy a presiding officer, or probation officer of the dis
 trict in which a Children's Court is silualed for a maximum (i) any oilier condition appropriate to the circum-
period of 250 hours and to be completed within twelve months: stances of the child and in keeping with the
principles of this Act, which promotes the chil-
Provided that this sentence may not be - dren's reintegration into society.
(i) imposed upon a child under the age of thirteen years; (3) The whole or any part of a sentence referred to under section
or 153 may be suspended, without conditions, or with one or more of the condi-
tions referred to under subsection (4).
(ii) harmful to a child's health or development and may not
prejudice school attendance. (4) The conditions of suspension referred to under subsection (3)
include -
Postponement or suspension of sentence
(a) the obligation not to re-offend;
154. (1) The passing of any sentence may be postponed, with or with-
out one or more of the conditions referred to under subsection (2), for a period (b) restitution, compensation or symbolic restitution; and
not exceeding three years.
(c) any other measure, including a sanction referred to
(2) The conditions of postponement referred to under subsection under section 153 if such sanction has not been
(1) may include - imposed as the sentence to be suspended, which is
appropriate to the circumstances of the child and in
(a) restitution, compensation or symbolic restitution; keeping with the principles of this Act, and which pro
motes the children's reintegration into society.
(b) an apology;
(5) Where a Children's Court has postponed the passing of sen-
(c) the obligation not to re-offend; tence under subsection (1) for a specified period and the Children's Court is,
'.t'" * after expiry of the period, satisfied that any conditions imposed have been ful-
it (d) being of good behaviour; filled, the Children's Court may decline to impose a sentence and may dis-
charge the child:
(e) school attendance; J<

Provided that the conviction may be recorded as a previous conviction or a pre-

i.,' (f) attendance at a victim-offender mediation, a family siding officer may act in accordance with the provisions of section 143(1).
group conference or other restorative dispute resolu-
i; tion process; Sentences with restorative justice element
I',!;;,'. -
(g) the attendance of guidance or counselling with a spec- 155. (1) A sentence involving a restorative justice element which is
ified provider of such services for a specified period by available as a sentence for the purposes of this Act includes -
• -r the child and members of his family;
(a) referral of a child concerned to appear at a victim-
(h) submilliitu to supervision and guidance for a specified ollrnder mediation;
period; ot
 (b) family group conference; or
tre for a specified purpose as referred to under section 153(k).
(c) other restorative justice processes,
Sentences involving residential element
at a specified place and time and on a specified date.
157. (1) No sentence involving a residential element may be imposed
upon a child unless a presiding officer is satisfied that -
(2) The decisions or agreements reached at the processes shall be
referred back to a Children's Court or any other court hearing a matter pursuant
(a) the seriousness of the offence justifies such a sentence;
to this Act -
(b) the protection of the community justifies such a sen-
(a) within fourteen days if the child concerned is in deten-
tence;
tion; or
(c) the severity of the impact of the offence upon the vic-
(b) within twenty one days if the child concerned is not in
tim was of such magnitude that such a sentence is jus-
detention,
tified; and
and shall be taken into account in the consideration of an appropriate sentence.
(d) the child has failed to respond previously to non-resi-
dential alternatives.
(3) Where a presiding officer in a Children's Court or any other
court passing sentence under this Act does not agree with the terms of the deci-
(2) A presiding officer imposing any sentence involving a residen-
sion or agreement reached at the process referred to under subsection (1), and
tial element on a child shall note the reasons for handing down such sentence
imposes a sentence which differs in a material respect from that agreed to or
on the record of the proceedings and communicate such reasons to the child in
decided upon, he shall note the reasons for deviating from the agreement or
a language that he can understand.
decision on the record of the proceedings.
(3) A sentence involving a residential element which is available
(4) Where an agreement or a decision is not reached at a process
as sentence for the purposes of this Act includes -
referred to under subsection (1), the matter shall be referred back to a presid-
ing officer in a Children's Court or any other court hearing a matter pursuant
(a) referral to a programme with a periodic residential
to this Act for imposition of a sentence.
requirement where the duration of the programme does
not exceed twelve months, and no portion of the resi-
Sentences involving imprisonment
dence requirement exceeds twenty one nights, with a
maximum of sixty nights for the duration of the pro-
156. (1) Imprisonment for a maximum period of three years may be
gramme; and
imposed as a sentence for the purposes of this Act provided that this sentence
may not be imposed on a child below the age of fourteen years.
(b) referral to a facility, and subject to the conditions set
out under section 158.
(2) The whole or any part of a sentence referred to under subsec-
tion (1) may be postponed or suspended with or without conditions as referred
Contribution order
to under section 154(2), on condition that a child performs a service for the
benefit of the community or on condition that the child attends n specified cen-
158. (1) Wlii'ir an order lias heen made by a Children's Court placing a

child in the custody of some other person or sundinji llu* child lo an approved
school, the Children's Court may -
(a) order the parent or guardian of the child to make con-
tributions towards the maintenance of the child;
(b) order the child if he has attained the age of sixteen
years and is engaged in remunerative work to make
contributions towards his maintenance; or
(c) from time to time vary or revoke an order made under
paragraph (a) or (b).
(2) A contribution order may be made on the application of the
person in whose custody a child is placed or who is named in the approved
school order.
(3) A contribution order shall remain in force so long as the com-
mittal order or approved school order is in force.
(4) A person on whom a contribution order is made shall, if he
changes his address, forthwith give notice thereof to the person who was,
immediately before the change, entitled to receive the contributions.
(5) A person who fails to give notice under subsection (4) commits
an offence and is liable on conviction to a fine not exceeding one thousand
Maloti or to imprisonment for a period not exceeding one month.
Referral to residential facility
159. (1) Where a sentence referred to under section 156 is a referral to
an approved school, such sentence may be imposed for a period of not less than
six months and, subject to subsection (2), a period not exceeding two years.
(2) A sentence to an approved school for longer than two years
may be imposed where a child is below the age of 16 years and would other-
wise have been sentenced to imprisonment, and where the offence is so seri-
ous as to warrant such sentence.
(3) A child referred lo under subsection (2) who, al I he time of the
.V)7
sentence is below the age of sixteen years, nuiy not be permitted to reside in an
approved school beyond the age of eighteen years.
(4) A child referred to under subsection (2) who is sixteen years or
older at the time of sentence may be permitted to reside in an approved school
until expiry of his sentence.
(5) A sentence to an approved school may not be extended by
administrative action and any application for the extension of the duration of
the sentence should be considered by the court which imposed the original sen-
tence.
(6) Where a sentence referred to under section 156 is that of
imprisonment, such sentence may not be imposed unless -
(a) a child is sixteen years of age or above; and
(b) substantial and compelling reasons exist for imposing a
sentence of imprisonment.
(7) No sentence of imprisonment may be imposed on a child in
respect of an offence listed in Schedule 1.
(8) Where a sentence referred to under section 156 is that of
imprisonment, the whole or any part of that sentence may be suspended on one
of the conditions referred to under section 157(2), on condition that a child per-
form service for the benefit of the community as referred to under section
153(1), or on condition that the child attend a specified centre for a specified
purpose referred to under section 153(k), or on condition that the child is sent
to prison as referred to under section 156.
(9) Where a child fails to comply with any condition imposed in
relation to any other sentence, such child may be brought before a Children's
Court for reimposition of an appropriate sentence, which may include a sen-
tence of imprisonment.
(10) Any period of time that a child has spent in prison while await-
ing trial shall he deducted by a presiding officer from any period of imprison
ment imposed as a sculriur.
Monetary penalties
'
he shall be liable to be dealt with according to the original offence as well as
the other offence.
160. No monetary penalty payable to the State may be imposed as a sen-
tence by a Children's Court or any other court acting under the provisions of
this Act. (3) A probation order shall have effect for such period of not more
than one year from the date of the order as may be specified in the probation
Prohibition of certain forms of punishment order.

(4) For the purposes of securing the good conduct and supervision
161. (1) No sentence of life imprisonment or death may be imposed on
a child or any person who was below eighteen years at the time the offence was of a probationer or preventing a repetition by him of the same offence or the
committed. commission of other offences, a probation order shall -

(a) require the probationer to comply, during that period,

(2) No sentence of corporal punishment or any form of punish-
ment that is cruel, inhumane or degrading may be imposed on a child. with the supervision of a probation officer;

(b) specify that the probationer is not to commit any

(3) A child who has been sentenced to attend an approved school
may not be detained in prison whilst awaiting designation of the place where offence during the term of probation order; and
the sentence is to be served.
(c) contain such other requirements, as a Children's Court,
having regard to the circumstances of the case, consitl
PART XVm - PROBATION ORDER
ers necessary, including any one or more of the fol low
Probation order ing:

(i) that the probationer shall reside at the proba-

162. (1) If a Children's Court before which a child appears is of the
tion hostel, at the home of his parent or
opinion that having regard to the circumstances of the case, including the
nature of the offence and the character of the child, it is appropriate to do so, guardian or relative or at some other place;
it may make a probation order.
(ii) that the probationer shall attend an educational
institution to be recommended by the probation
(2) A Children's Court, before making a probation order under sub-
section (1), shall explain to a child in a language that the child understands - officer;

(a) the effect of the order; and (iii) that the probationer shall remain indoors at his
place of residence, be it at the probation hostel
(b) that if he- or at a home, during hours to be specified.

(i) fails to comply with the probation order; or (5) Without prejudice to the powers of a Oli'ldrw/s Court to make
orders, the payment of moneys by way of damages for injury or compensation
(ii) commits another offence, for loss shall not be included amongst the requirements of a probation order.

(6) A Childirn's Court, before making a probation order contain-

ing requirements as lu ir;;ulnnr
600
(a) shall consider the home environment ol a child; and
(b) if the order requires a child to reside in a probation hos-
tel, shall specify in the order the period for which he is
so required to reside, but that period shall not extend
beyond twelve months from the date of the order.
(7) A Children's Court which makes a probation order shall -
(a) immediately give a copy of the order -
(i) to a probationer;
(ii) to a probation officer or another person under
whose supervision the probationer is placed;
and
(iii) to a person in charge of the probation hostel or
other place in which the probationer is required
by the order to reside; and
(b) send to the Children's Court for the district or area
named in the order in which the probationer is required
to reside during the probation period a copy of the
order together with such documents and information
relating to the case as it considers likely to be of assis-
tance to the court.
(8) A Children's Court in making a probation order may, if it
thinks it is expedient for the reformation of a probationer, place the probation-
er in charge of any person who consents to accept the probationer, on that per-
son giving security for the good behaviour of the probationer.
Failure to comply with probation order
163. (1) If at any time during the probation period it appears to a
Children's Court that a probationer has failed to comply with any of the
requirements of the probation order, the Children's Court may issue -
(a) a summons requiring the probationer to appear at the
oui
place and time specified in the summons; or
(b) a warrant of his arrest.
(2) A warrant under subsection (1) shall not be issued except on
information in writing and on oath submitted by a probation officer.
(3) A summons or warrant issued under this section shall direct a
probationer to appear or be brought before a Children's Court.
(4) A probationer when arrested under subsection (1) may, if not
brought immediately before a Children's Court under subsection (3) -
(a) be placed under detention; or
(b) be released on bail, with or without sureties,
until such time as he can be brought before the Children's Court.
(5) If it is proved to the satisfaction of a Children's Court that a
probationer has failed to comply with any of the requirements of a probation
order under section 162(4)(a) or (c), the Children's Court may, without prejn
dice to the continuance of the probation order, deal with the probationer for the
offence in respect of which the probation order was made, in any manner in
which the Children's Court could deal with him if it had just found him guilty
of that offence.
Effects of probation order
164. (1) The finding of the children's court that a child is in conflict
with the law for an offence for which an order was made under this Part plac-
ing a child on probation, shall be deemed not to be a proved conflict with the
law for any purpose other than for the purposes of -
(a) the proceedings in which the order was made; and
(b) any subsequent proceedings which may be taken
against a child under this Part.
The provisions ol substvlioii < I ) shall not affect the right of any such child
 (a) to appeal against the i'initiii^ < > ( j'.nilt; or (a) reducing the probation order; or

(b) to rely on a finding as if the order was of any subse- (b) extending that period such that the probation period
quent proceedings for the same olTence. becomes more than three years.

Variation of probation order Discharge of probation order

165. (1) If a Children's Court is satisfied that a probationer proposes to 166.' (1) A Children's Court may, on an application made by a
change or has changed his residence from the district or area named in a pro- probation officer, a parent or guardian of a probationer discharge the probation
bation order to another district or area, the Children's Court may, and if an order.
application is made by a probation officer, by order, vary the probation order
by substituting for the district or area named therein the district or area where (2) A Children's Court shall not deal with an application under
the probationer proposes to reside or is residing. subsection (1) without summoning a probationer unless the application is made
by a probation officer.
(2) If a probation order contains requirements which, in the opin-
ion of a Children's Court, cannot be complied with unless a probationer con- (3) Where -
tinues to reside in the district or area named in the order, the Children's Court
shall not vary the order except in accordance with subsection (4). (a) a Children's Court discharges a probation order under
subsection (1); or
(3) If a probation order is varied under subsection (1), a Children's
Court shall send to the other Children's Court for the new district or area (b) a probationer is dealt with under section 163 for the
named in the order a copy of the order together with such documents and infor- offence for which he was placed on probation,
mation relating to the case as it considers likely to be of assistance to such
other Children's Court. the probation order shall cease to have effect.

(4) Without prejudice to subsections (1) and (3), a Children's
('ourt may, on the application made by a probation officer or by a probationer,
vary the probation order by -
(a) revoking any of the requirements in the probation
order; or
• (a)
(b) inserting in the probation order, either in addition to or
in substitution for any such requirement, any require-
ment which could be included in the order as if the
order was made by the Children's Court in accordance
with section 163.
(5) A Children's Court shall not vary a probation order under sub-
section (4) by -
Children's Court to give copies of varying or discharging order to proba-
tion officer
167. On the making of an order varying or discharging a probation order
under section 165 or 166 respectively -
a Children's Court shall forthwith give sufficient copies of the
varying or discharging order to a probation officer;
(b) a probation officer shall give a copy of the varying or discharg-
ing order to -
(i) a probationer; or
(ii) a prison in charge of the probation hostel or place in
604
which the probationer is or was ici|iiirnl by Ihe order to
reside.
PART XIX - APPEAL AND REVIEW
Appeal by child against whom a charge has been proved
168. A child against whom a charge has been proved by a Children's Court
or any other court acting under the provisions of this Act has the right to
appeal.
Automatic review in certain cases
169. (1) A sentence which involves a residential element imposed on a
child under sections 157 and 159 and any sentence involving imprisonment
imposed on the child under section 155, shall be subjected in the ordinary
course to review.
(2) Any sentence involving a residential element imposed under
the provisions of this Act, which is wholly or partially suspended, is subject to
review under subsection (1).
(3) The review procedure referred to under subsection (1) or (2)
shall be deferred where a child has appealed against a proven charge or sen-
tence and has not abandoned the appeal, and shall cease to apply with refer-
ence to such an accused when judgement is given.
(4) Each sentence on a separate charge shall be regarded as a sep-
iirate sentence for the purposes of rendering a sentence subject to the provi-
sions of this section.
(5) Proceedings which fall within the ambit of this section for the
purposes of review shall be reviewed whether or not the accused was legally
represented at any stage of the proceedings.
(6) A judicial officer conducting a review under this section has
Ihe power to -
(a) confirm, alter or quash the proven ch
(b) confirm, alter or set aside the sentence or any other
order of the lower court;
(c) set aside or correct the proceedings of the lower court;
(d) generally give such judgement or impose such sentence
or make such order as the lower court ought to have
given, imposed or made on any matter which was
before it at the trial of the case in question; or
(e) increase the sentence imposed by the lower court or
impose any form of sentence.
(7) A judicial officer exercising powers under this section may
receive any evidence or cause a subpoena to be served on any person to appear
for the purposes of giving evidence.
Review in other instances
170. (1) Nothing contained in this Act shall be construed as depriving
the High Court of its inherent right to review irregularities in proceedings ol
lower courts or other bodies as the law may permit.
(2) If, in any case of a child in conflict with the law in which a
Children's Court or any other court acting under the provisions of this Act has
imposed a sentence which is not subject to automatic review in the ordinary
course, it is brought to the notice of the High Court that the proceedings in
which the sentence was imposed were not conducted in accordance with jus-
tice, such court has the same powers as if the matter has been laid before that
court concerned under section 168.
Review of proceedings after proving a charge but before sentence
171. (1) If the presiding officer, after a conflict with the law has been
proven, but before sentence, is of the opinion that the proceedings have not
been conducted in accordance with justice, he may, without sentencing the
accused, record reasons for this opinion and transmit them, together with the
record of the proceedings, io the registrar of the High Court, who shall cause
the matter to be srl down lor it-view.
 607

(2) The review referred to under subset-lion ( I ) skill be conducted ' (a) it is expedient so to deal with the child; and
in the same way as automatic review under section !(><).
(b) the parent or guardian understands the results which
Suspension of execution of sentence
will follow from, and consents to the making of the
order,
172. (1) The execution of any sentence may not be suspended by the
noting of an appeal against a proven conflict with the law or sentence or pend-
it may, on the recommendation of a probation officer, order that the child -
ing review unless the court which imposed the sentence releases a child con-
cerned on conditions referred to under section 113(3), (4) and (5) or, in the case
(i) be sent to an approved school or probation
of a sentence not involving a residential element, suspends the operation of the
hostel, as may be appropriate; or
sentence pending the finalisation of the appeal or review.
(ii) be placed for such period not exceeding three
(2) Where execution of a sentence has been suspended in terms of years under the supervision of -
subsection (1), it may be a further condition, where appropriate, that a child
against whom a conflict with law has been proven shall report at a specified (aa) a probation officer; or
place and time and in the manner prescribed by the rules of court.
(bb) some other person appointed for the
PART XX - CHILDREN AT RISK OF OFFENDING
purpose by it,
Children at risk of offending
and any such order may require the child to reside for a period not
exceeding twelve months in a probation hostel, approved school or
173. (1) If a parent or guardian of a child requests a Children's Court
other appropriate institution.
orally or in writing to detain the child in an approved school or probation hos-
tel on the grounds that the parent or guardian is unable to exercise proper con-
Supervision by probation officer
trol over the child, the Children's Court -
174. (1) If a Children's Court makes an order of placing a child under
(a) shall immediately inquire into the circumstances of the the supervision of a probation officer or some other person pursuant to section
parent or guardian's request;
173(2)(b)(ii), that officer or other person -
(b) shall direct a probation officer to submit a social
(a) shall, while the order remains in force, visit, guide and
inquiry report to it for the court to determine whether
counsel the child; and
an order under subsection (2) may be made in respect
of the child; and
(b) may, if it appears necessary to do so, at any time while
the order remains in force, bring the child before the
(c) may, after hearing the child, order the child to be tem-
Children's Court.
porarily detained in an approved school or probation
hostel, if it deems it necessary to do so.
(2) A Children's Court before whom a child is brought under sub-
section (1) (b) may, if it deems it expedient to do so, amend the order made
(2) If after considering a report referred to in subsection (l)(b), and
under section 17:t and -
the comments of a child thereon, a Children's Court is satisfied thiit -
 (a) send the child, subject to (he ronsenl of Ihc child's par-
ent or guardian, to an approval school, place of safety
or centre, which ever is appropriate; or
(b) place the child in the care of a fit and proper person,
whether a relative or not, who is willing to undertake
the care of the child, for the unexpired period of the
order.
PART XXI - INSTITUTIONS
Places of safety for children in need of welfare
175. (1) The Minister may, by notice in the gazette, designate, estab-
lish or appoint any place or institution to be a place of safety for the care and
protection of children.
(2) The Minister shall determine conditions and requirements to be
met by all places of safety and shall not register any place of safety unless and
until it has met those conditions and requirements.
(3) The Department of Social Welfare shall -
(a) maintain a directory of all registered places of safety;
and
(b) be responsible for monitoring and supervision of the
places of safety.
(4) The Director of Social Welfare shall advise the Minister on the
designation, establishment or appointment of any place or institution to be a
place of safety for the care and protection of children.
(5) The Minister shall have powers to appoint a commission of
enquiry on any place of safety should a need arise.
(6) The Minister shall have the power to revoke a gazette men-
lioned in subsection (1) if the person who runs a place of safety does not com-
ply with the provisions of subsection (2).
Escape or removal of child from place of safety
175. (1) A child who escapes or is removed from a place of safety with-
out lawful authority -
(a) may be apprehended by a social worker, police officer,
chief or member of the community and shall be
brought to the place of safety; and
(b) shall be kept for such period which is equal to the
remaining term of his stay under the order originally
made by a Children's Court.
(2) A social worker or police officer, chief or member of the com-
munity who apprehended a child shall investigate the case so as to find out why
the child escaped.
Removing or helping a child to escape from place of safety
177. A person who-
(a) removes a child from a place of safety without lawful authori-
ty;
(b) assists or induces, directly or indirectly, a child to escape from
a place of safety; or
harbours or conceals a child who has so escaped, or prevents him from
returning to the place of safety,
commits an offence and is liable on conviction to a fine not exceeding four
thousand maloti or to imprisonment for a period not exceeding four months or
both.
Places of detention or custody for children in conflict with the law
178. (1) The Minister may, by notice in the Gazette, designate, establish
or appoint such places of detention as may be required for the purposes of this
Act.
 611

(2) The Minister shall determine conditions ami requirements to be (3) A child, while being detained and while being conveyed to and
met by all places of detention or custody for children in conflict, with the law from the place of detention, shall be deemed to be in lawful custody.
and shall not register any institution unless and until it has met those conditions
and requirements. (4) The Minister -

(3) The Probation Unit shall - (a) shall cause places of detention or custody to be inspect-
ed; and
(a) maintain a directory of all places of detention and cus-
tody for children in conflict with the law; and (b) may make regulations -

(b) be responsible for monitoring and supervision of places (i) as to the classification, treatment, employment
referred to under paragraph (a). and control of children detained in such places
of detention or custody; and
(4) The Director of Probation Unit shall advise the Minister on the
designation, establishment or appointment of any place, institution or centre to (ii) to provide for the appointment of fit and prop-
be a place of detention or custody for the care and protection of children in er persons to visit periodically children
conflict with the law. detained in such places of detention.

(5) The Minister shall have powers to appoint a commission of Escape or removal from place of detention or custody
inquiry on any place of detention or custody should a need arise.
180. (1) A child who escapes or is removed from a place of detention or
(6) The Minister shall have the power to revoke a gazette men- custody without lawful authority -
tioned in subsection (1) if the person, institution or organisation which runs a
place of detention or custody does not comply with the provisions of subsec- (a) may be arrested without a warrant by a probation offi-
tion (2). cer or a police officer and be brought back to the place
of detention; and
Remanding children to places of detention or custody
(b) shall be kept in a place of detention or custody for the
179. (1) A child shall ordinarily be remanded in custody in a place of remaining term of his detention under the order issued
detention designated, established or appointed under this Act and situated in by a Children's Court.
the same area as a Children's Court by which the child is remanded.
(2) A probation officer or police officer who apprehended a child
(2) The order or judgement in pursuance of which a child is com- shall investigate the case so as to find out why the child escaped.
mitted in custody in a place of detention shall be -
Removing or helping a child to escape from place of detention or custody
(a) delivered with I he child to the person who is in charge
of the pliice of detention; and 181. A person who •

(b) an a u t l i o i i l v t i n his detention in the place of detention (a) removes :i Hiild from a place of detention or custody without
in iiccoiilame w i t h the lenns of the order or judgement. hiwlul imlhoiilv;
 (b) assists or induces, directly or indirectly, a child lo escape from (b) assists or induces, directly or indirectly, a child to escape from
a place of detention or custody; or a probation hostel; or

(c) harbours or conceals a child who has so escaped, or prevents (c) harbours or conceals a child who has so escaped, or prevents
him from returning to the place of detention or custody, him from returning to the probation hostel,

commits an offence and is liable on conviction to a fine of not exceeding four commits an offence and is liable on conviction to a fine not exceeding four
thousand maloti or to imprisonment for a period not exceeding four months or thousand maloti or to imprisonment for a period not exceeding four months or
both. both.

Probation Hostel Approved school

182. The Minister may, by notice in the Gazette, designate, establish or
appoint such probation hostels as may be required for the purposes of this Act.
Child under thirteen years not to be sent to probation hostel
183. A child under the age of thirteen years shall not be sent to a probation
hostel.
Child who escapes or is removed from probation hostel
184. A child who escapes or is removed from a probation hostel without
lawful authority -
186. (1) The Minister may, by notice in the Gazette, designate, establish
or appoint such approved schools as may be required for the education, train-
ing and detention of children to be sent there in pursuance of this Act.
(2) The Minister may classify such approved schools -
(a) according to the ages of the persons for whom they are
intended; and
(b) in such other ways as he may think fit so as to ensure
that a child sent to an approved school is sent to a
school appropriate for his case.

(a) may be arrested without warrant by any probation officer or Child under thirteen years not to be sent to an approved school
police officer; and
187. A child under thirteen years shall not be sent to an approved school.
(b) may be brought back to the hostel or before a Children's Court,
When child can be sent to approved school
and the Children's Court may deal with him for the offence for which he was
sent to the probation hostel in the same manner in which the Children's Court 188. (1) If-
could deal with him if it had just proved a charge against him.
(a) a child is found guilty of an offence;
Removing or helping a child to escape from probation hostel
(b) a probation report submitted to a Children's Court
185. Any person who - shows that -

(a) removes a child from a probation hostel without lawful (i) a parent or guardian of a child can no longer
authority;
Oil
exercise or is incapable <>1 rxnvising any prop
er control over him; and
(ii) a child is in need of institutional rehabilitation;
and
(c) it appears to a Children's Court that although the
offence committed is not serious in nature but it is
expedient that a child be subjected to detention for such
term and under instruction and discipline as appears
most conducive for his reformation,
the Children's Court shall, on the recommendation of a probation officer, send
the child to an approved school.
(2) If a Children's Court orders a child to be sent to an approved
school, the order shall be an authority for his placement in that approved
school for a period of three years from the date of the order.
(3) Notwithstanding subsection (2), the management of an
approved school to which a child is sent may, in their discretion -
(a) shorten the period of detention for reasons which
appear to them to be sufficient;
(b) permit any such child to be released for such period
and upon such conditions as they may deem fit to
impose;
(c) report to the Probation Unit on the action taken; or
(d) where the Probation Unit is not in agreement with the
action taken, the matter shall be referred to a Children's
Court for determination.
(4) A child shall not be permitted to be released under subsection
(3)(b) during the first twelve months of the period of detention without the
written consent of the Minister.
Approved school order
189. (1) A Children's Court which makes an approved school order
shall cause the order to be delivered to the person who is in charge of the
approved school.
(2) A Children's Court which makes an approved school order
shall cause all such information in its possession to be transmitted to the per-
son who is in charge of the approved school.
(3) If a child has been ordered to be sent to an approved school,
any person who harbours or conceals him when the time has come for him to
go to the approved school, commits an offence and is liable on conviction to a
fine not exceeding one thousand Maloti or to imprisonment for a period not
exceeding one month or both.
(4) If a person authorised to take a child to ah approved school is,
when the time has come for him to go to the approved school, unable to -
(a) find the child; or
(b) obtain possession of the child,
a Children's Court may, if satisfied by information on oath or affirmation that
there are reasonable grounds for believing that some person named in the infor-
mation can produce the child, issue a summons requiring the person so named
to appear at the court on such day as may be specified in the summons and pro-
duce the child.
(5) If a person referred to under subsection (4) fails to comply
with the requirements under subsection (4) without reasonable excuse, he
shall, in addition to any other liability to which he may be subject to under this
Act, on conviction, be liable to a fine not exceeding one thousand Maloti or to
imprisonment for a period not exceeding one month or both.
Further placement in approved school
190. If a person who is in charge of an approved school is satisfied that a
child -
 (a) whose period of placement in the approval school is about to
expire needs further care or training; and
(b) cannot be placed in suitable employment without such further
care and training,
he shall, if the management of the approved school consent, make an applica-
tion to a children's court for placement of child for a further period of six
months but any such period shall not extend beyond the date the child attains
the age of eighteen years.
After-care of child released from approved school
191. If a child is sent to an approved school, a Children's Court making an
order shall, at the same time, make the order that after the expiration of the
period of his placement he shall, for a period not exceeding one year, be under
the supervision of -
(a) a probation officer; or
(b) such other person as the Children's Court may appoint.
Escape from approved school or failure to return to approved school after
expiry of leave
192. (1) Any child who -
(a) escapes from an approved school in which he is placed,
or from any hospital, home or place in which he is
receiving medical attention;
(b) being absent from an approved school on temporary
leave of absence or with permission -
(c) being absent from an approved school under supervi-
sion, fails to return to the approved school upon being
recalled,
may be arrested without warrant and be brought before a Children's Court
where the child is found or the approved school is situated.
(2) If a child brought before a Children's Court under subsection
(1) is under the age of fourteen years, the Children's Court shall order the child
to be brought back to the approved school or to be sent to another approved
school for -
(a) a period which is equal to the period during which he
was unlawfully at large; or
(b) the remainder of his period of placement; and
(c) such period not exceeding six months as the Children's
Court may direct, in addition to the periods mentioned
in subsection (2)(a) and (b).
(3) If a child brought before a Children's Court under subsection
(1) has attained the age of fourteen years, the Children's Court may order the
child to be brought back to the approved school or to be sent to another
approved school for -
(a) a period equal to the period during which he was
unlawfully at large; or
(b) the remainder of the period of his placement; and
(c) such further period not exceeding six months as the
Court may direct.

(i) runs away from the person in whose charge he Supervision of approved school
is; or
193. Every approved school shall be under the supervision of the Director
(ii) fails to return to the approved school upon the of Probation Unit.
expiration of his leave, or upon the revocation
of such permission; or
MS _

Removing or helping a child to escape from approved school Standards for monitoring and supervision of children's institutions estab-
lished under this Act
194. A person who -
196. (1) The Department of Social Welfare and the Probation Unit shall
(a) removes a child from an approved school without lawful facilitate the setting of standards for monitoring and supervision of all chil-
authority; dren's institutions established under this Act.

(b) assists or induces, directly or indirectly, a child to escape from (2) There shall be established under the Department of Social
an approved school; or Welfare and the Probation Unit a body to monitor and supervise all institutions
providing care and protection to children under this Act.
(c) harbours or conceals a child who has so escaped, or prevents
him from returning to an approved school, PART XXH - PARENTAGE, CUSTODY AND GUARDIANSHIP

commits an offence and is liable on conviction to a fine not exceeding two Parentage
thousand maloti or to imprisonment for a period not exceeding two months or
both. 197. (1) The following persons may apply to a Children's Court for an
order to confirm the parentage of a child -
Other facilities for children in conflict with the law
(a) the child;
195. (1) The Minister may, by notice in the Gazette, establish or appoint
other facilities as may be required for temporary accommodation or day-train- (b) a parent of the child;
ing without institutionalising children in conflict with the law pursuant to this
Act. (c) a guardian of the child;

(2) A child placed in a facility referred to under subsection (1), (d) a probation officer;
shall be under the supervision of a probation officer.
(e) a social worker; or
(3) The Director of Probation Unit may grant leave of absence to
any child who is in temporary accommodation at the facility referred to under (f) any other interested person as the Children's Court may
subsection (1), for such periods and on such conditions as he may prescribe. deem fit.

(4) Where it is deemed appropriate, the Director of Probation Unit (2) An application for parentage may be made -
may transfer a child to any other suitable facility.
(a) before a child is born;
(5) A child who is placed at a specific facility and who absconds
shall be arrested with or without warrant and be brought before a Children's (b) after the death of a father or mother of a child; or
Court in the area in which he is found.
(c) before a child is eighteen years of age or after the child
(6) A Children's Court shall enquire into the ahsmiuliug and make has attained that age with special leave of a Children's
an appropriate decision basing itself on the best interests of llu- child. Court.
<>20 621

Kvidence of parentage (e) the need for continuity in the care and control of a
child; and
198. The following shall be considered by a Children's Court as evidence of
parentage - (f) any other matter that it may consider relevant.

(a) the name of a parent entered in the register of births; Non-custodial parent to have access to a child

(b) public knowledge of parentage; and 201. A non-custodial parent in respect of whom an application is made to a
' Children's Court for an order of parentage or custody under this Part, shall
(c) any other matter that it may consider relevant. have access to a child who is the subject of the order.

Medical test Removal of a child from lawful custody

199. A Children's Court may order a parent referred to in section 198 to sub- 202. (1) No person shall remove a child from a person who has lawful
mit medical test, results and the Children's Court shall, on the basis of the evi- custody of the child.
dence before it, make such order as it considers appropriate.
(2) A person who unlawfully removes a child from a person who
Custody and access has lawful custody of the child commits an offence and is liable on conviction
to a fine not exceeding two thousand Maloti or to imprisonment for a period
200. (1) A parent, family member or any other person may apply to a not exceeding two months or both.
Children's Court for custody of a child.
Appointment of guardian
(2) A parent, family member or any other person may apply to a
(Children's Court for periodic access to the child. 203. (1) For purposes of this section "guardian" means a person
appointed to assume parental responsibility over a child by -
(3) A Children's Court shall consider the best interests of a child
when making an order for custody or access. (a) a will made by a parent of the child;

(4) A Children's Court shall, when making an order under subsec- (b) an order of a Children's Court;
tion (3), also consider -
(c) by a family; or
(a) the age of a child;
(d) the Master of the High Court.
(b) that it is preferable for a child to be with his parents
except if his rights are persistently being abused by his (2) A guardian may be appointed by any of the parties referred to
parents; under subsection (1) acting alone or in conjunction with the surviving parent
of a child where one of the parents is deceased, or the father of the child born
(c) the views of a child; out of wedlock who has acquired parental responsibility for the child, or one
of the parents where parents of the child are no longer living together.
(d) that it is desirable to keep siblings lo^rllin;
 (3) A guardian may be appointed in resprrl ol ;iny child who is res
ident in Lesotho whether or not the child was born in I .esotho or is a citizen ol' Appointment of testamentary guardian
Lesotho.
205. (1) A parent of a child may, by will, appoint any person to be a
guardian of the child after the parent's death.
(4) A guardian appointed under this Act need not be a Lesotho cit-
i/en or resident in Lesotho.
(2) A guardian of a child may, by will or deed, appoint another
(5) A guardian may be appointed in respect of a person or estate of Individual to take his place as the guardian of the child in the event of his
a child or both. death.

(3) An appointment made under subsection (1) or (2) shall not

(6) Where a guardian is appointed only in respect of an estate of a
child, he need not have actual custody of the child but shall, with the authori- have effect unless the will or deed is dated and is signed by a person making
ty of the Master of the High Court, have - the appointment.

(4) A guardian so appointed shall act as such after the death of a

(a) the power and responsibility to administer the estate of
the child and in particular to receive and recover and surviving parent unless the surviving parent has requested otherwise.
invest the property of the child in his own name for the
(5) If a child, member of a family or guardian appointed consid-
benefit of the child;
ers that a parent is unfit to have legal custody of the child, he may apply to a
(b) the duty to take all reasonable steps to safeguard the Children's Court which may -
estate of the child from loss or damage;
(a) refuse to make any order in which case the parent shall
(c) the duty to produce and avail accounts in respect of the remain the only guardian; or
child's estate to the parent or custodian of the child or
(b) make an order that the guardian shall act jointly with
to such other person as a Children's Court may direct,
or to the Children's Court, as the case may be, on every the parent;
anniversary of the date of his appointment; and
(c) make an order appointing a relative of the child or a
person who is willing to act, a guardian of the child, to
(d) to produce any account or inventory in respect of the
act jointly with the parent or guardian or both of them;
child's estate when required to do so by a Children's
Court. or

Rights of surviving parent to guardianship (d) make an order that the guardian shall be the only
guardian of the child, in which case the Children's
204. (1) On the death of the father of a child, the mother, if surviving, Court may order the parent to pay the guardian a finan-
shall, subject to the provisions of this Act, be the guardian of the child. cial provision towards the maintenance of the child
having regard to the means of the parent, as the
(2) On the death of the mother of a child, the lather, if surviving, Children's Court may consider reasonable:
shall, subject to the provisions of this Act, be the guardian ol' the child.
Provided that, the Children's Court shall not appoint the guardian, if the
guardian is not a relative of the child, unless the circumstances are such that it,
624
is t-prudent to do so.
(6) Where guardians are appointed by both parents, the guardians
so appointed shall, after the death of a surviving parent, act jointly.
(7) Subject to subsection (5), a guardian who has been appointed
to act jointly with a surviving parent, shall continue to act as the guardian after
the death of the parent, but if the surviving parent has appointed the guardian,
the guardian appointed by a Children's Court shall act jointly with the guardian
appointed by the parent.
Appointment of guardian by a Children's Court
206. A Children's Court may appoint a guardian on the application made by
any person where a child's parents are no longer living or cannot be found and
the child has no guardian and there is no other person having parental respon-
sibility for him or where the parents of the child are no longer living together.
Guardianship revocation
207. An appointment made under section 206 revokes an earlier appoint-
ment made by the same person in respect of the same child, unless it is clear
that the purpose of the latter appointment is to appoint an additional guardian.
Extension of guardianship beyond a child's eighteenth birthday
208. (1) An appointment of a guardian shall be terminated upon a child
attaining the age of eighteen years, unless exceptional circumstances exist that
would require a Children's Court to make an order that the appointment be
extended.
(2) Where an order is made under subsection (1), it shall be made
prior to a child's eighteenth birthday.
(3) A Children's Court making an order under this section may
attach such conditions as to the duration of the order and containing directions
as to how it shall be carried out, imposing such other conditions that shall be
complied with and with such incidental, supplemental or consequcntiary pro-
visions as the Children's Court thinks fit.
625
(4) A Children's Court shall have power to vary, modify or revoke
any order made under this section on a child's eighteenth birthday on the appli-
cation made by the child, the parent or guardian of the child, a relative of the
child or the Director of Social Welfare or where the child marries on his eigh-
teenth birthday, his spouse.
Disputes between guardians
209. Where two or more persons act as joint guardians to a child, or where
a surviving parent and guardian act jointly and are unable to agree on any ques-
tion affecting the welfare of the child, either party may apply to a Children's
Court for its direction, and the Children's Court may make such order as it may
consider proper.
Neglect or misapplication of assets by the guardian of the estate of the
child
210. Where a guardian of the estate of a child, whether or not the guardian
is also the guardian of the child, neglects to recover or safeguard, or misplaces
any asset forming part of the estate of the child, or subjects the estate to loss or
damage, he commits an offence and is liable on conviction to a fine not exceed-
ing ten thousand maloti or to imprisonment for a period not exceeding ten
months or both.
Duties of guardian in relation to the estate of a child
211. (1) No guardian of an estate of a child shall -
(a) neglect to receive and safeguard any assets forming
part of the estate or misapplies any such assets to loss,
waste or damage;
(b) fail to produce to a Children's Court or the parent or
guardian of the child any account or inventory required
by the Children's Court; or
(c) produce any such inventory or account which is false.
 627

(2) A person who contravenes subsection ( I ) commits an offence Consideration for maintenance orders
and is liable on conviction to a fine riot exceeding live thousand Maloti or to
imprisonment for a period not exceeding five months or both. 214. A Children's Court shall consider the following when making a main-
tenance order -
PART XXin - MAINTENANCE OF CHILDREN
(a) a source of income and wealth of both parents of a child or of
Duty to maintain a child a person legally liable to maintain the child;
212. (1) A parent or any other person who is legally liable to maintain (b) any impairment of the earning capacity of the person with a
a child or contribute towards the maintenance of the child is under a duty to duty to maintain the child;
supply food, clothing, health, life, basic education, reasonable shelter or any
other thing that may be necessary for the well-being of the child. (c) financial responsibility of a person;
(2) For purposes of this section, basic education means primary up (d) the cost of living in the area where a child resides;
to secondary education or its equivalent.
(e) rights of a child under this Act; and
(3) A person who contravenes subsection (1) commits an offence
and is liable on conviction to a fine not exceeding one thousand Maloti or to (f) any other matter which it considers relevant.
imprisonment for a period not exceeding one month or both.
Request for social inquiry report
Application for maintenance order
215. A Children's Court may request that a social worker prepares a social
213. (1) The following persons may apply to a Children's Court for inquiry report on the issue of maintenance and submit it to it for consideration
maintenance order of a child - before a maintenance order.

(a) the child; Maintenance order

(b) the parent of the child; 216. (1) A Children's Court may award maintenance to a childwhether
the parents are married or not and the maintenance order shall include the fol-
(c) the guardian of the child; lowing -
(d) a relative of the child; (a) medical expenses for the child;

(e) a social worker; or (b) a periodic allowance for the maintenance of the child;
and
(f) any other person.
(c) the payment of a reasonable sum to be determined by
(2) An application for maintenance may be made against any per- the Children's Court for the education of the child.
son who is liable to maintain a child or contribute towards his maintenance.

(2) A Children's Court may order a periodic payment or lump sum
payment for the maintenance of a child and the earnings, salary or property ol'
the person liable may be attached.
(3) An attachment order shall be applicable in all cases of failure
to pay maintenance.
(4) A maintenance order may be directed to the employer to deduct
the sum of maintenance money every time payment of the salary or other earn-
ings is made.
(5) When considering an application for maintenance, a Children's
Court may make a maintenance order which it considers reasonable for any
child in the household.
(6) A Children's Court may make an order for arrears of mainte-
nance against any person liable to pay maintenance.
Persons entitled to maintenance order
217. (1) A person who has custody of a child who is the subject of a
maintenance order is entitled to receive and administer on behalf of the child
the maintenance order made by a Children's Court.
(2) If a parent, guardian or whoever has custody of the child ceas-
es to be a fit person, a Children's Court of the area where the child is resident
may appoint another person to have custody of the child and administer the
maintenance order and that person shall act as if originally appointed by the
Children's Court.
Duration of order
218. (1) A maintenance order issued by a Children's Court shall expire
when the child attains the age of eighteen years or dies before that age.
(2) A maintenance order shall lapse before a child attains the age
of eighteen years if before that age the child is gainfully employed as referred
to under section 228 (1).
629
Continuation of maintenance orders
219. (1) Notwithstanding the provisions of section 218,' a Children's
Court may continue a maintenance order after a child has attained eighteen
years if the child is engaged in a course of secondary education or training after
that age.
(2) An application made under this section may be brought by a
parent of a child, any person who has custody of the child or the child himself.
Variation or discharge of orders
220. A Children's Court may, if satisfied, vary or discharge a maintenance
order on the application of a parent or guardian, or the person who has cus-
tody of a child or any other person legally liable to maintain the child.
Enforcement of maintenance orders
221. A maintenance order shall be enforced after thirty days of the making
of the order.
Non-custodial parent to have access to child
222. A non -custodial parent in respect of whom an application is made to a
Children's Court for an order of maintenance under this Part, shall have access
to the child who is the subject of the order.
Joint maintenance of child
223. Unless a Children's Court otherwise directs, and subject to any finan-
cial contribution ordered to be made by any other person, the following pre-
sumptions shall apply with regard to the maintenance of a child -
(a) where parents of a child were married to each other at the time
of the birth of the child and are both living, the duty to main-
tain the child shall be their joint responsibility;
(b) where two or more guardians of a child have been appointed,
the duty to maintain the child shall be the joint, responsibility ol
 all guardians, whether acting in conjunction with Ihc parents or
not;
(c) where two or more custodians have been appointed in respect
of the child it shall be the joint responsibility of all custodians
to maintain the child; and
(d) where the mother and father of the child were not married to
each other at the time of the birth of the child and have not sub-
sequently married, but the father of the child has acquired the
parental responsibility of the child, it shall be the joint respon-
sibility of the mother and father of the child to maintain that
child.
Maintenance during matrimonial proceedings
224. A Children's Court shall have power to make a maintenance order,
whether or not proceedings for nullity, judicial separation, divorce or any other
matrimonial proceedings have been filed by a parent of a child or during pro-
ceedings or after a final decree is made in such proceedings.
or order the person required to make a payment of the maintenance monies
under this section to secure the whole or any part of it by vesting the sums or
any other property in trust for the child.
PART XXIV - EMPLOYMENT OF CHILDREN
Exploitative child labour
226. (1) No person shall employ a child in exploitative labour.
(2) For purposes of this Act, labour is exploitative if it deprives or
hinders a child access to health, education or development.
Prohibition of child labour at night and in industrial undertakings
227. (1) No person shall employ a child in night work or work in
industrial undertakings.
(2) For purposes of this Act, night work constitutes work between
the hours of six o'clock in the evening to six o'clock in the morning.

Payment of maintenance monies to persons other than the applicant (3) A person who contravenes this section commits an offence and
is -
225. Where a maintenance order is made under this section, a Children's
Court may, at the time of making the order, on being satisfied that the person (a) on first conviction, liable to a fine not exceeding twen-
in whose favour the order is made - ty thousand Maloti or to imprisonment for a period not
exceeding twenty months or both; or
(a) is not a fit or proper person to receive any maintenance monies
specified in the order in respect of a child; or (b) on second or subsequent conviction, liable to imprison-
ment for a minimum period of two years without the
(b) has left the jurisdiction of the Children's Court for an indefinite option of a fine.
period, or is dead, or is incapacitated or has become of unsound
mind, or has been imprisoned or has been declared insolvent; Minimum age for child labour
or
228. (1) The minimum age for admission of a child to employment
(c) has misappropriated, misapplied or mismanaged any mainte- shall be fifteen years.
nance monies paid to him for the benefit of a child,
(2) No person shall employ a child below the minimum age of fif-
appoint any other person it considers fit and responsible to receive and admin- teen years.
ister any maintenance monies required to be paid under ;i niainlenance order,
 (3) A person who contravenes this section comtnitN an offence and (e) work in places such as bars, hotels and places of enter-
is - tainment where a person may be exposed to immoral
behaviour;
(a) on first conviction, liable to a fine not exceeding twen-
ty thousand Maloti or to imprisonment for a period not (f) herding animals at the cattle posts;
exceeding twenty months or both;
(g) commercial sexual work; or
(b) on second or subsequent conviction, liable to imprison-
ment for a minimum period of two years without the (h) tobacco production and trafficking.
option of a fine.
(4) A person who contravenes this section commits an offence and
Engagement in light work is -

229. (1) Notwithstanding section 228, a child who is thirteen years or (a) on first conviction, liable to a fine not exceeding twen-
above may be engaged in light work. ty thousand Maloti or to imprisonment for a period not
exceeding twenty months or both;
(2) For the purposes of this Act, light work constitutes work which
is not likely to be harmful to the health or development of a child and does not (b) on second or subsequent conviction, liable to imprison-
affect the child's attendance at school or the capacity of the child to benefit ment for a minimum period of two years without the
from school. option of a fine.

Minimum age for hazardous employment Non-employment of children and young persons in industrial undertak-
ings
230. (1) No child below the age of eighteen years shall be employed in
any form of hazardous work. 231. (1) No employer shall, in an industrial undertaking, employ a child
in employment without satisfactory proof of the child's age.
(2) Work is hazardous when it poses a danger to the health, devel-
opment safety or morals of a person. (2) An employer in an industrial undertaking shall keep a register
of the children and young persons employed by him and of the dates of their
(3) Hazardous work includes - births.

(a) mining and quarrying; (3) An industrial undertaking is an undertaking other than one in
commerce or agriculture and includes -
(b) porterage of heavy loads;
(a) mines, quarries and other works of the extraction of
(c) manufacturing industries where chemicals are pro- minerals from the earth; or
duced or used;
(b) undertakings in which articles are manufactured,
(d) work in places where dangerous machines are used; altered, cleaned, repaired, ornamented, finished, adopt
ed for sale, broken up or demolished, or in the genera-
 tion, transformation or transmission o! Het'tricity or
motive power of any kind.
(4) A person who or organisation which has a reasonable suspicion
that a child is employed in an industrial undertaking shall report to the Ministry
responsible for labour and employment affairs.
(5) The Ministry responsible for labour and employment affairs
shall investigate cases of children employed in industrial undertakings and take
appropriate action.
(6) The Ministry responsible for labour and employment affairs
shall in the investigation of cases referred to under subsection (5), request med-
ical officers, social workers and other professionals to provide any expert
information necessary.
(7) A person who contravenes this section commits an offence and
is -
(a) on first conviction, liable to a fine not exceeding twen-
ty thousand Maloti or to imprisonment for a period not
exceeding twenty months or both;
(b) on second or subsequent conviction, liable to imprison
ment for a minimum period of two years without the
option of a fine.
PART XXV - PROTECTIVE MEASURES RELATING
TO THE HEALTH OF CHILDREN
Consent to medical treatment or surgical operation
232. (1) A child may be subjected to medical treatment only if he con-
sents to such treatment in terms of subsection (2) or (3).
(2) A child may consent to medical treatment provided the child is -
(a) at least twelve years of age; and
(b) of sufficient maturity and has the menial capacity to
understand the benefits, risks, social and other impli-
cations of the treatment or operation.
(3) A child may not consent to a surgical operation without the
assistance of -
(a) a parent or guardian of the child; or
(b) a care-giver of the child.
(4) A parent, guardian or care-giver of a child may consent to the
medical treatment or surgical operation of the child if the child is -
(a) under the age of twelve years; or
(b) over that age but is of insufficient maturity or does not
have the mental capacity to understand the benefits,
risks and social implications of the treatment or opera-
tion.
(5) A superintendent of a hospital or a person in charge of a hospi-
tal in the absence of the superintendent shall consent to the medical treatment
or surgical operation on a child if -
(a) the treatment is necessary to preserve the life of the
child or to save the child from serious or lasting phys-
ical injury or disability; and
(b) the need of the treatment or operation is so urgent that
it cannot be deferred for the purposes of obtaining con-
sent that would otherwise have been required.
(5) A Children's court may consent to the medical treatment or
surgical operation on a child if -
(a) the child has been abandoned; or
(b) a parent, guardian or care-giver of the child -
 (i) unreasonably refuses to ftivc consent or to
assist the child in giving consent;
(ii) is physically or mentally incapable of giving
consent or assisting the child in giving consent;
(iii) is deceased; or
(iv) cannot readily be traced.
(7) No parent, guardian or care-giver of a child may refuse to assist
a child under subsection (2)(b) or withhold consent under subsection (3) by
reason only of religious, cultural or other beliefs, unless the parent, guardian or
care-giver of the child is able to show that there is medically acceptable alter-
native to the medical treatment or surgical operation.
HIV Testing
233. (1) No child may be tested for HIV except when this is in the best
interests of the child and consent has been given under subsection (2).
(2) Consent for HIV test on a child may be given by -
(a) the child, if the child is twelve years or older;
(b) a parent, guardian or care-giver of the child, if the child
is under the age of twelve years or is not of sufficient
maturity or does not have the mental capacity to under-
stand the benefits, risks and social implications of such
a test;
(c) a social worker arranging the placement of the child, if
the child is under the age of twelve years or is not of
O J
sufficient maturity or does not have mental capacity to
understand the benefits, risks and social implications of
such a test;
(d) a person in charge of a hospital, if
(i) the child is under the age of twelve years or is
not of sufficient maturity or does not have the
mental capacity to understand the benefits,
risks and social implications of such a test;
(ii) the child has no parent or guardian and there is
no designated child protection organisation
arranging the placement of the child; or
(e) A Children's Court, if -
(i) consent under paragraph (a), (b), (c) or (d) is
unreasonably withheld; or
(ii) the child or a parent or guardian of the child is
incapable of giving consent.
Access to legal, medical and health assistance
234. (1) A child who is a survivor of sexual abuse and exploitation
shall, as soon as possible, be provided with emergency legal, medical or health
assistance.
(2) No person may refuse to provide reproductive health informa-
tion to a child who has been a subject of any form of abuse.
PART XXVII - MISCELLANEOUS
Powers of the courts
235. Notwithstanding any penalty imposed under this Act, a court may,
where circumstances warrant, impose any penalty higher than that provided for
in the Act.
Regulations
236. The Minister may, by notice published in the Gazette, make regulations
generally for giving effect to the provisions of this Act.
Repeals
Schedule II
237, (1) Children's Protection Act, 19801 is repealed.
Public violence.
(2) Adoption of Children Proclamation, 19522 is repealed.
Culpable homicide.
Amendment of Labour Code, 1992
Assault, including assault involving the infliction of grievous bodily harm.
238. Section 78 of the Labour Code, 1992 is amended by -
Arson.
(a) inserting "(1)" immediately before "after";
House breaking, whether under common law or a statutory provision, with
intent to commit an offence, if the amount involved in the offence does not
(b) deleting a full stop at the end of the section and substituting a
exceed M20,000.00.
semi colon;
Robbery, other than robbery with aggravating ckcumstances, if the amount
(c) inserting the following subsection:
involved in the offence does not exceed M20,000.00.
"(2) subsection (1) does not apply where an estate of a deceased employee
Theft where the amount involved does not exceed M20,000.00.
involves minor children.".
Any other offence under any law relating to the illicit possession of depend-
Schedule I
ence producing drugs.
Assault where grievous bodily harm has not been inflicted.
Forgery, uttering or fraud, where the amount concerned does not exceed
M20,000.00.
Malicious injury to property where the damage does not exceed M1000.00.
Any conspiracy, incitement or attempt to commit any offence referred to under
Any offence under any law relating to the illicit possession of dependence pro-
this schedule.
ducing drugs where the quantity involved does not exceed 25 grams.
1. Act No. 1 of 1980
Theft, where the value of the property involved does not exceed M100.00.
2. Proclamation No. 1 of 1952
Any statutory offence where the maximum penalty determined by that statute
is a fine of less than M300.00 or three months imprisonment.

Conspiracy, incitement or attempt to commit any offence referred to in this

schedule.
 GOVERNMENT NOTICE N(). I ( > < )l•' ,><> 1 1
The Parliament of Lesotho
Statement of Objects and Reasons of the
Child Protection and Welfare Act, 2011
(Circulated by the Authority of the Minister responsible for Justice,
Human Rights and Rehabilitation and of Law and Constitutional Affairs
Honourable Mpeo Mahase-Moiloa)
Outline
1. The purpose of the Bill is to consolidate and reform the laws relating
to the protection and welfare of children and to provide for incidental matters
in order to bring various pieces of legislation in line with current child protec-
tion issues and also with the international standards on the human rights of
children.
2. The Bill provides for two main categories of children, that is, those in
need of welfare and general care, on the one hand, and those who are in con-
flict with the law, on the other hand.
3. According to the Bill, a child is a person under the age of eighteen
years. This definition of the child is in line with acceptable international stan-
dards.
4. The Bill provides for several principles that form the tenets of child
rights globally such as the best interest of the child, non-discrimination and
evolving capacities.
\
5. The Bill provides for rights and freedoms which the child should enjoy
such as the right to a name and nationality, the right to birth registration and
citi/cnship, the right to parental property, and the right to education and well-
being.
6. According to the Bill, parents are mandated to fulfill certain duties and
responsibilities in relation to their children, such as duties to register their chil-
dren's births and deaths, and the responsibilities to protect children from neg-
led, abuse, discrimination, violence, exploitation, oppression, and exposure to
physical and moral hazards.
7. In accordance with the provisions of the Bill, children also have
responsibilities, especially in respect to respecting their parents, guardians,
superiors and elders at all times, and preserving and strengthening social and
national solidarity.
8. The Bill also provides for the duties and responsibilities which the state
has to undertake, such as that of protecting children from discrimination and
taking positive action to promote and protect their rights, providing assistance
for raising children when parents and other fail to do so and providing free and
compulsory primary education.
9. The Bill identifies different categories of children in need of care, wel-
fare and protection. These include children whose provision of their food,
clothing, shelter, education and health is inadequate, children who are at the
risk of physical, psychological, emotional sexual abuse and children who are
abandoned and found to have no suitable person willing to care for them.
10. The Bill empowers the social workers (whether employed by the
department of social Welfare, Probation Unit or Private Organisations) to deal
with cases involving these children, depending on the special circumstances of
children concerned. However, the Bill emphasizes that in all cases, institution-
alization should be regarded as measure of the last resort.
11. The Bill provides for different categories of children who come in con-
tact with the law. Such children include witnesses of crime, victims or perpe-
trators of crime, or those involved in family disputes.
12. In terms of the Bill, even when children are arrested and appear in
court, they should get special treatment or not be treated like adults. The treat-
ment they receive should be intended to promote the children's sense of digni-
ty and worth which in addition, seeks to encourage them to in turn respect the
rights of others,
13. The Bill offers a number of alternatives for dealing with children who
come in contact with the law. In place of the normal criminal justice proce-
dures and processes, it advocates for the adoption of interrelated mechanisms
that lay emphasis on diversion programmes and restorative justice processes.
642

14. The adoption of the programmes and processes listed set the premise
lor a new child justice system as proposed in the Bill. This system will help to
set apart the less serious from the more serious child offenders and afford the
less serious child offenders an opportunity to pay for their debts to society
without obtaining a criminal record through the application of diversionary
measures.

15. Realising that due to many different circumstances, the numbers of

orphans and other vulnerable children are growing at a rapid rate in Lesotho,
and recognizing that such children have special needs, the Bill makes specific
provisions for the protection of orphaned children and their estates, parentage,
custody, guardianship and maintenance of children and protection of children
who are trafficked or abducted.

16. Generally the Bill is intended to be a tool that can be used by everyone
in dealing with issues that affect children in a holistic manner. It will assist
government and its partners to translate policy into clear "deliverables" in
order to make children's rights a reality in Lesotho.